eNotes: Liability – November 2018
October 31, 2018
TT&H LAWYERS IN COURT
TT&H Attorney Jillian Denicola wins summary judgment in trip and fall incident.
Jillian Denicola, an attorney in TT&H’s Wilkes-Barre office, won summary judgment in connection with a trip and fall incident at a hotel in Wellsboro, Pennsylvania. During the evening hours, Plaintiff fell on a step while exiting a restaurant located in the hotel. Plaintiff claimed that the step was hazardous, improperly maintained and insufficiently demarcated. However, Plaintiff’s deposition testimony revealed that the step was structurally intact and that she simply missed the step, causing her to fall. While Plaintiff attempted to argue that the general area where the fall occurred was insufficiently illuminated, testimony from the paramedics who tended to her at the scene revealed that it was at least bright enough for them to perform their assessment without additional lighting. Successfully arguing that there was simply no defective condition present on the premises, Jillian won summary judgment for the Defendant.
Questions about this case can be directed to Jillian Denicola, at (570) 820-0240 ext. 8608 or email@example.com.
TT&H Attorneys Monica O’Neill and Christopher Gallagher win summary judgment in construction site incident in Philadelphia.
Monica O’Neill & Chris Gallagher, attorneys in TT&H’s Philadelphia office, won summary judgment in connection with a trip and fall incident at a construction site in Philadelphia. The incident occurred on New Year’s day during the afternoon hours. Plaintiff allegedly tripped and fell over a hose located in the street near the construction site. Plaintiff claimed that the hose was hazardous, improperly maintained and a dangerous condition. Monica and Chris were able to establish through discovery that their client did not have any ownership interest in the property or the hose and that their client was not near the property at the time of the accident. The Court agreed, finding that their client bore no responsibility for Plaintiff’s injuries and that summary judgment should be entered in its favor.
Questions about this case can be directed to Monica O’Neill, at (215) 564-2928 ext. 8503 or firstname.lastname@example.org.
SIGNIFICANT CASE SUMMARIES
PENNSYLVANIA CASE SUMMARIES
Clemens v. N.Y. Cent. Mut. Fire Ins. Co.
United States Court of Appeals for the Third Circuit
Decided: September 12, 2018
Courts have the discretion to deny an award of statutorily authorized attorneys’ fees when the amount requested is outrageously excessive.
Bernie Clemens was injured in an automobile accident and sought underinsured motorist benefits from his insurer, New York Central Mutual Fire Insurance Company. Dissatisfied with the insurance company’s handling of his claim, Mr. Clemens filed suit alleging that the insurer had engaged in a breach of contract and bad faith. The underinsured motorist claim was settled for $25,000. The jury subsequently determined that the insurer had acted in bad faith and awarded punitive damages in the amount of $100,000.
Pennsylvania’s bad faith statute gives the trial court the discretion to require an insurer who has violated the statute to pay the attorneys’ fees incurred by the insured. Mr. Clemens’ attorneys submitted a petition seeking to recover fees and costs totalling $946,526.43. After reviewing the petition, the District Court determined that 87% of the hours billed had to be disallowed because they were vague, duplicative, unnecessary or inadequately supported by documentary evidence. Among the deficiencies noted were: (a) counsel did not maintain contemporaneous time records for most of the litigation and recreated this information for the fee petition; (b) entries referenced time spent on analysis and review but did not explain what was being analyzed or reviewed or why this activity was necessary; and (c) counsel claimed to have essentially spent 70 days preparing for a four day trial involving a total of five witnesses.
Given the substantial deductions that were made, the District Court determined that the fee petition was outrageously excessive and exercised its discretion to determine that the attorneys were not entitled to recover any fees.
The U. S. Court of Appeals for the Third Circuit holds that District Courts have the discretion to deny a fee request in its entirety when the amount sought is “outrageously excessive” under the circumstances. Otherwise, in its view, claimants would be encouraged to make unreasonable demands, knowing that the only consequence of such conduct would be a reduction of their fee to what they should have asked for in the first place.
Questions about this case can be directed to Jeanette Ho, at (412) 926-1449 or email@example.com.
Pace v. Wal-Mart Stores East, L.P.
United States District Court for the Eastern District of Pennsylvania
Decided: September 18, 2018
Speculation as to cause of alleged dangerous condition and alleged unrelated violation of store policy insufficient to establish notice.
Plaintiff slipped and fell on a grape or grape juice at defendant’s store. Plaintiff did not know how the grape came to be on the floor, how the long the grape was on the floor or whether any store employees knew the grape was on the floor. Video surveillance evidenced an employee pulling a cart of boxes, unloading the contents of the boxes in nearby produce case and breaking down the boxes before leaving the area with the cart. This activity started approximately one hour prior to Plaintiff’s fall and ended about 20 minutes prior to his fall. A second employee walked past the area at 12 minutes prior the fall and walked past other debris in the area without picking it up, which was in contravention of the store’s stated policy.
Defendant filed a Motion for Summary Judgment arguing that Plaintiff failed to establish that the store created the dangerous condition or had actual or constructive notice of any dangerous condition of the floor (i.e. the grape) prior to accident. At the time of argument, Plaintiff stated that not all video surveillance had been produced, and the Court granted additional time to explore the alleged missing video evidence. Defendant denied that there was any further video evidence. At the second argument, Plaintiff argued that there was spoliation of evidence as to the alleged missing video evidence, and he was entitled to a spoliation inference. Plaintiff further claimed that the activities of the employee who was seen in the video stocking produce led to the grape being on the floor, and thus, established that the store created the dangerous condition. Lastly, Plaintiff claimed that the fact that an employee walked past debris, and did not pick it up, evidenced a violation of store policies and could establish negligence.
The District Court determined that Plaintiff failed to establish that the store created the dangerous condition or had actual or constructive notice of the condition. The Court determined that Plaintiff had presented no evidence of actual notice and that the testimony of Plaintiff established that there was no evidence which would establish any constructive notice. The Court dismissed Plaintiff’s claim that the video evidence of the stocking activities established that the store might have resulted in the grape being deposited on the floor. The Court determined that such a claim was purely “speculative” and such “pure speculation or conjecture” was insufficient to defeat a Motion for Summary Judgment. The Court further found that although the failure of the employee to pick up debris from the floor may have been a violation of store procedure, it did not establish constructive knowledge of the grape, which was the cause of the fall. Lastly, the Court held that spoliation only applies when it is shown that the missing relevant evidence was within the control of a party, it was foreseeable to the party in control of the evidence that it should be preserved, and the evidence was withheld or destroyed. The Court found that Plaintiff had not provided any evidence to establish that the claimed missing video evidence ever actually existed. Thus, the Court held that there was no basis to submit the issue of whether the alleged evidence was destroyed to the jury. The Court granted summary judgment to Walmart as to Plaintiff’s claims.
Questions about this case can be directed to Rebecca Sember-Izsak, at (412) 926-1446 or firstname.lastname@example.org.
Tosic v. Coley
Pennsylvania Superior Court
No. 3475 EDA 2017, 2018 Pa. Super. Unpub. LEXIS 3570
Decided: September 24, 2018
While consistently under attack, the Superior Court holds that the “hills and ridges” doctrine is alive and well in Pennsylvania.
On January 10, 2014, Ruth Tosic left her home to perform duties as a certified nursing aide. When traveling to the neighborhood of a client, she slipped and fell on a sidewalk abutting property owned by the Coleys. Ms. Tosic brought suite and alleged that the Coleys had failed to inspect the sidewalk, remove the icy condition and have a person onsite to monitor and treat the sidewalk. It was further alleged that the Coleys failed to warn pedestrians of the icy condition. The Coleys responded by noting that the icy condition was actually created by freezing rain which was ongoing at the time of Ms. Tosic’s fall. Further, they stated that Ms. Tosic had failed to meet the requirements of the “hills and ridges” doctrine. After discovery and on motion, summary judgment was entered for the Coleys.
The Court began by noting the oft-cited “hills and ridges” doctrine, which serves to protect an owner or occupier of land from liability from generally slippery conditions resulting from ice and snow when the owner has not permitted the ice and snow to unreasonably accumulate in ridges or elevations. In order to seek the protection of this doctrine, the condition complained of must be of an entirely natural accumulation and/or the result of a generally slippery condition, not a localized patch of ice.
Here, the parties’ respective meteorological experts agreed that a generalized slippery condition existed in the vicinity of Plaintiff’s fall. More importantly, Ms. Tosic’s expert, while noting that “there would have remained piles of plowed/shoveled snow” from prior accumulations, did not state that any specific “piles or formations” existed, nor that any such piles had any causal relationship to the area of ice upon which Ms. Tosic slipped. Further, the Court noted that Ms. Tosic herself testified that the sidewalk where she fell was covered with “smooth” ice. The Court, finding that Ms. Tosic failed to show that the Coleys had unreasonably allowed an accumulation of snow or ice to form ridges or elevations which had unreasonably and dangerously obstructed the Plaintiff’s path or even that such an accumulation caused her fall, the Court affirmed the entry of summary judgment in favor of the Coleys.
Questions about this case can be directed to Ryan Blazure, at (570) 820-0240 or email@example.com.
Gregg v. Ameriprise, Riversource Life Ins. Co.
Pennsylvania Superior Court
2018 Pa. Super. 252
Decided: September 12, 2018
Catchall provision of Pennsylvania’s Uniform Trade Practices and Consumer Protection Law, proscribing deceptive conduct which creates a likelihood of confusion or of misunderstanding, provides a separate strict liability cause of action against vendors, in addition to claims that require carelessness or intent.
After a jury returned a verdict in favor of the Defendant insurance company and a financial adviser and insurance salesman, the Court, in a subsequent non-jury trial, entered judgment in favor of Plaintiffs and against the insurance Defendants, finding them in violation of the catchall provision of Pennsylvania’s Uniform Trade Practices and Consumer Protection Law (UTPCPL). The catchall provision found at 73 P.S. Section 201-2(4)(xxi) prohibits anyone who advertises, sells or distributes goods or services from “[e]ngaging in any . . . fraudulent or deceptive conduct which creates a likelihood of confusion or misunderstanding” during a transaction. The Court awarded over $50,000 in compensatory damages and over $80,000 in legal fees and costs in favor of Plaintiffs. The insurance Defendants argued that the Court could not find them in violation of the UTPCPL when a jury had exonerated them on claims of common law fraudulent and negligent misrepresentation.
Plaintiffs’ causes of action arose from a convoluted series of transactions involving the placement of life insurance coverage, investments in various accounts, diversion of funds into IRA account, and the resulting commissions earned on those investments by their financial adviser and insurance salesman.
Although both sides filed motions for post trial relief which were denied, only the insurance Defendants appealed raising two issues. First, should the Lower Court have dismissed the UTPCPL claims after they had prevailed on the common law claims before a jury? And second, whether the Court erred in calculating the compensatory damages when it did not subtract the value Plaintiffs had received by have a life insurance policy in effect for over 10 years?
The Superior Court affirmed the Lower Court and opined that the catchall provision of the UTPCPL must be read expansively to provide protection for consumers. After revisiting, distinguishing, and reconciling decisions by both the Commonwealth Court and the Superior Court with the legislative history behind the catchall provision, including a significant amendment to that provision in 1996, the Court held that consumers, who justifiably rely upon a vendor’s deceptive acts in a commercial transaction, can maintain a claim of deceptive conduct under the catchall provision of the UTPCPL as a separate and distinct cause of action from the common law claims of fraudulent and negligent misrepresentation. Most important, the Court held that “[t]he general Assembly, by ‘eliminating the common law state of mind element (either negligence or intent to deceive),’ . . . imposed strict liability on vendors who deceive consumers by creating a likelihood of confusion or misunderstanding in private, as well as public, causes of actions.”
Concerning the second issue raised on appeal dealing with the calculation of compensatory damages, the Court held that under the Trial Court’s broad remedial authority, the “only way” to return the parties status quo ante was for the insurance Defendants to return all premiums paid by Plaintiffs.
Questions about this case can be directed to Joe Holko, at (610) 332- 7005 or firstname.lastname@example.org.
MARYLAND CASE SUMMARIES
Reid v. State of Maryland
Maryland Court of Special Appeals
No. 2609, September Term 2016
Decided: September 27, 2018
Declaratory judgment is not an available remedy if a statute provides a special form of remedy for a specific type of case.
Plaintiff Reid was charged with a misdemeanor; those charges were subsequently dropped by the State. Plaintiff filed a complaint against the State of Maryland and the Attorney General (“Defendants”) seeking a declaratory judgment regarding public access to court records, the statutory scheme for expungement of those records, and his rights under the Maryland Declaration of Rights claiming that the public display of the now dismissed case resulted in a stigma. The Trial Court dismissed the case because the Criminal Procedure Article of the Maryland Code contained a procedure for expungement of criminal records. Plaintiff appealed.
The Court of Special Appeals affirmed the dismissal. Declaratory judgment relief is disfavored when a complete remedial statutory scheme exists. Because the Maryland Code includes a remedy for this type of case, i.e., people seeking to have their criminal records expunged, declaratory relief is not available.
Questions about this case can be directed to Renita Collins, at (410) 653-0460 or email@example.com.
Wallace & Gale Asbestos Settlement Trust v. Busch
Maryland Court of Special Appeals
September Term, 2017, No. 1055
Decided: September 26, 2018
Under the “opening the door doctrine,” when a party injects an issue into evidence that otherwise would not be admissible, evidence relating to that issue becomes admissible by opposing parties.
William Busch is a 69-year-old retired steamfitter. Throughout his career he installed thermostats, sensors, relay stations, fan control systems, and automatic temperature control devices. Busch’s work generally occurred at the end of commercial construction projects, when the job sites were complete. Wallace & Gale (“W&G) was a local insulation contractor that sold and installed insulation, some of which contained asbestos. Wallace & Gale Asbestos Settlement Trust (“WGAST”) was established in 2002 to cover expenses related to injuries sustained by exposure to W&E’s asbestos containing materials. McCormick Asbestos Company (“McCormick”) was another local insulation contractor and W&G competitor. Busch was a Plaintiff to a lawsuit filed against, among other Defendants, WGAST and McCormick. Busch alleged that he was exposed to asbestos-containing products installed by W&G in 1972. McCormick was dismissed from the lawsuit one month prior to trial.
At trial, WGAST submitted as evidence various documents relating to the history of Busch’s lawsuit to support its defense that Busch did not have evidence that he was exposed to W&G’s products in 1972 and that Busch, at one point, alleged that other contractors, including McCormick contributed to his asbestos exposure. In response, the Trial Court permitted Busch to enter into evidence, over WGAST’s objection, the stipulation of dismissal of McCormick. A jury returned a verdict in favor of the Plaintiffs. WGAST moved for JNOV, a new trial, and, in the alternative, remittitur. The Circuit Court denied the motions. WGAST appealed, presenting a number of questions to the Court of Special Appeals; the most notable question being whether the Circuit Court erred by admitting evidence and instructing the jury in ways that allowed the jury to find liability based on immaterial facts, such as the fact that McCormick was dismissed and WGGAST was not.
The Court of Special Appeals held that the Trial Court did not err in admitting the “immaterial facts” because the “opening the door” doctrine let Busch tell the jury that W&G’s competitor was dismissed, as this alleviated confusion that WGAST created by documents in evidence which reflected the historical procedures of the case. The Court explained that when a party injects an issue into evidence that otherwise would not be admissible, evidence relating to that issue becomes admissible by opposing parties. In other words, the door is opened.
Questions about this case can be directed to Salvatore Cardile, at (410) 653-0460 or firstname.lastname@example.org.
NEW JERSEY CASE SUMMARIES
Nockenofsky v. Arbonne Int’l, LLC
United States District Court for the District of New Jersey
2018 U.S. Dist. Lexis 174155
Decided: October 10, 2018
Where jurisdiction is in doubt, a federal court may sua sponte review diversity and subject matter jurisdiction.
Plaintiff alleged she purchased a “30-Day Feeling Fit Kit” sold by Defendant Arbonne International. Plaintiff ingested and consumed the various Arbonne products contain in the Kit as directed. In the summer of 2016, Plaintiff began experiencing adverse effects and by September 2016, Plaintiff was diagnosed with extremely high liver enzymes. After her condition deteriorated, Plaintiff underwent a liver transplant. Plaintiff had no prior history of liver disease. Plaintiff filed a personal injury action for claims of product liability, strict liability, negligence, and breach of warranty among others. Plaintiff named Arbonne and their sales representatives, Chaya Bornstein and Elsheva Stamler, New Jersey residents. Defendant filed a notice of removal and Plaintiff filed a motion to remand because the two Defendants, Bornstein and Stamler, were New Jersey residents like the Plaintiff, so there was no diversity jurisdiction. Defendant Arbonne argued that Plaintiff’s joinder of the individual Defendants was fraudulent, to destroy diversity.
When determining whether there has been fraudulent joinder, generally the District Court only considers the facts set forth in the original Complaint. Here, the original Complaint set forth a plausible claim against Defendant Arbonne, but not the individual representatives, and based on that Complaint alone the remand would have been denied. However, the District Court sua sponte reviewed the Amended Complaint to determine diversity jurisdiction noting “federal courts have ‘an independent obligation to satisfy themselves of jurisdiction if it is in doubt,’ they may also ‘raise sua sponte subject matter jurisdiction concerns.’” Reviewing the Amended Complaint, the District Court found that there were plausible causes of action against Defendants Stamler and Bornstein, as independent contractors who sold the Arbonne products to Plaintiff, for negligence and misrepresentation of the safety of the products. As such, Defendants Stamler and Bornstein were properly joined and the matter was remanded to the state Court for lack of diversity jurisdiction.
Questions about this case can be directed to Paraskevoula Mamounas, at (610) 332-7029 or email@example.com.
Victor v. Borough of Red Bank
New Jersey Superior Court, Appellate Division
Decided: September 27, 2018
Superior Court affirms Trial Court’s granting of summary judgment on because Plaintiff could not establish the existence of a dangerous condition.
Plaintiff Victor was traveling to the Borough of Red Bank’s baseball field to watch his grandson’s game. He was walking quickly to the field and looking at his grandson, who was in the batting cage. Victor tripped over a dugout bench that the Borough moved between ball fields to provide players a place to sit between games. The bench was positioned behind some metal bleachers on a concrete pad next to one of the fields. Victor claims he did not see the bench as he was looking forward when he was walking.
The Borough moved for summary judgment contending Plaintiff could not demonstrate the accident area (i.e. the concrete pad and bench) was in a dangerous condition or that the placement of the bench was unreasonable under the circumstances. Plaintiff argued the placement of the bench on the concrete pad constituted a dangerous condition and whether its placement was unreasonable was a question for the jury. The Trial Court granted summary judgment.
The Court affirmed, holding that the bench itself was not a dangerous condition and as positioned, was only potentially dangerous to individuals not paying attention to their surroundings. The Court noted that Victor failed to establish that the Borough’s placement of the bench behind the bleachers rendered the concrete pad a dangerous condition to a person who foreseeably would walk behind the bleachers to access the other ball fields. There was nothing blocking Victor’s view of the bench. Even if Victor were able to establish that placement of the bench behind the bleachers on the concrete pad constituted a dangerous condition, Victor provided no proof that the placement of the bench or failure to move it was palpably unreasonable.
Questions about this case can be directed to Michael Bishop, at (610) 332-7009 or firstname.lastname@example.org.
VIRGINIA CASE SUMMARY
Haynes-Garrett v. Dunn
Virginia Supreme Court
Decided: October 4, 2018
Property owners who seasonally rented a vacation home had the duty of a landlord to his tenant, not an innkeeper to his guest.
A renter sued the owner of a rental property after tripping inside on a lip between a carpeted room and tiled hallway and suffering an elbow injury. She alleged that the owners failed to maintain the floors in a safe condition, to properly inspect the floors, and to adequately warn her of the danger. After the renter concluded her case, Defendants moved to strike her evidence arguing they did not breach any duty owed to the renter. Defendants argued that even as a vacation rental, the nature of their relationship with the renter was landlord-tenant because neither the owners nor the rental manager maintained a presence, or even direct or continued control over the property. Further, the owners asserted that absent fraud or concealment, they had no duty to maintain or repair the property or warn the renter of dangerous conditions unless they knew hidden dangers existed.
The renter argued that the owners owed the same duties to her as an innkeeper to his guests because the house was turnkey, and was in all senses besides physical layout identical to a hotel, or at a minimum, that the relationship was one of an owner to his invitee, and that the lip was a hidden condition. The Circuit Court granted the owners’ motion to strike.
As to the owner’s duty, the Court explained that the difference between landlord-tenant and innkeeper-guest duties is the extent to which the owner maintains control and possession during occupancy. An innkeeper is in direct and continual control over the property which justifies his elevated duty of care. A lessee has right of possession and enjoyment, and therefore assumes risks of personal injury. The Court affirmed the Circuit Court’s ruling, finding that the owners did not hold the property as a public place for accommodation of travelers; rather the property was a second home for family vacations which was rented out for part of the year. Further, the owners did not make the property open to the general public, and by contract were not allowed access to the property during rental season without first notifying the manager.
Questions about this case can be directed to Collin Shannon, at (202) 945-9504 or email@example.com.