TT&H eNotes: Liability – November 2017

FIRM NEWS

In her spare time, TT&H Attorney Lindsey Cook coaches the University of Maryland School of Law’s National Trial Team. Last month, Lindsey’s team competed in San Antonio, Texas in the Lone Star Classic, a nation-wide competition with teams from law schools across the country. The students competed in five rounds of mock trials and were judged based on their trial advocacy skills. Lindsey’s team placed first in the competition, bringing home the championship trophy. Congratulations, Lindsey!

Lindsey is an associate in the firm’s Harrisburg, PA office. She can be reached at (717) 237-7111 or lcook@tthlaw.com.

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TT&H LAWYERS IN COURT

TT&H Attorneys Schwalm and Clayberger win summary judgment for a county children & youth services agency in federal civil rights action.

The United States District Court for the Middle District of Pennsylvania entered summary judgment in favor of a county children and youth services agency represented by TT&H Attorneys David Schwalm and Matthew Clayberger. The action was filed by parents whose parental rights were temporarily altered by the agency because of founded indications that they had physically abused their child. The parents alleged that the agency’s actions in limiting their parental rights through the use of a voluntary “safety plan” violated due process secured by the Fourteenth Amendment.

TT&H Attorneys successfully argued that the parents’ procedural due process rights were not violated because the parents participated in an adversarial hearing in which a Court of Common Pleas Judge found that they had physically harmed their child before the agency established the safety plan. Also successfully argued was that the parents’ substantive due process rights had not been violated because the safety plan did not result in the removal of a child or parent from the family home. Based on the evidence of record, the District Court entered judgment in favor of the agency, concluding that no reasonable juror could find that the parents’ due process rights were violated.

Questions about this case may be directed to Matt Clayberger, at (717) 237-7150 or mclayberger@tthlaw.com.

TT&H Attorneys Schwalm and Clayberger win summary judgment on behalf of a county prison in an Eighth Amendment and Equal Protection lawsuit filed by a transgender prison inmate.

The United States District Court for the Middle District of Pennsylvania entered summary judgment in favor of a county prison represented by TT&H Attorneys David Schwalm and Matthew Clayberger. The lawsuit was filed by a transgender prison inmate, who alleged that she was treated differently from other prison inmates by being placed in solitary confinement while going through opiate withdrawal. Based on these allegations, the inmate asserted claims against the prison and prison officials for cruel and unusual punishment and for violating the Equal Protection Clause.

TT&H Attorneys successfully argued that the conditions of the inmate’s confinement did not violate the Eighth Amendment’s prohibition on cruel and unusual punishment. They also argued that the inmate was treated no differently than other inmates experiencing drug or alcohol withdrawal, regardless of gender. The Court concluded that the prison and the prison officials were entitled to judgment as a matter of law on all claims, and entered summary judgment in their favor.

Questions about this case may be directed to Matt Clayberger, at (717) 237-7150 or mclayberger@tthlaw.com.

Attention to detail: Joe Cardile wins defense verdict in favor of Defendants in automobile accident case.

Following a half-day bench trial in the District Court for Baltimore County, TT&H Attorney Joe Cardile obtained a defense verdict in an automobile accident case. Mr. Cardile represented a Defendant business, which specializes in electronic and communications systems security, and the Defendant Service and Install Technician who was operating the company van when it collided with a passing vehicle on a winding road. Plaintiff filed suit alleging negligence of the driver and vicarious liability of his employer. Plaintiff called a civil engineering expert to testify as to the size of the road and surrounding conditions in order to establish that the Defendant driver had ample room to navigate the road without impacting the Plaintiff’s vehicle. However, Mr. Cardile successfully argued that the Plaintiff failed to establish the identity of the driver of the Defendant’s vehicle. The Court granted Defendants’ motion for judgment and dismissed the case.

Questions about this case can be directed to Joe Cardile, at (410) 653-0460 or scardile@tthlaw.com.

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SIGNIFICANT CASE SUMMARIES

PENNSYLVANIA CASE SUMMARIES

Flook v. The TJX Cos.

• United States District Court for the Middle District of Pennsylvania
• No. 4:15-CV-02069, 2017 WL 4099753
• Decided: September 15, 2017

Federal District Court grants summary judgment for Defendant and provides implicit advice to property owners on how to avoid being held responsible to invitees for falls on snow and ice.

Background
Plaintiff, a tractor-trailer driver, slipped and fell on snow and ice, injuring herself, while delivering goods to Defendant’s distribution center. Other trailers parked at the docks had “mounds of ice and snow under them” where the Defendant had not plowed, including the location where she had been instructed to drop her trailer. Seeing six inches of snow at the rear of her trailer and the ice, she unhooked her air lines, chocked her tires and lowered the landing gear without incident. While pulling the pin on the fifth wheel, she slipped on the ice, suffering a fractured tailbone and trauma to her back and head.

Defendant asserted that it had no duty to Plaintiff under the circumstances, since Defendant had a written snow removal plan, contracted with a winter services contractor to continuously plow the lot during storms, had employees to assist with snow removal, had managers and supervisors to supervise the winter maintenance, and provided salt, ice choppers, and shovels for its invitees to use, if necessary. Defendant also argued that the condition of the lot was “know” and “obvious” to Plaintiff. Although Defendant admitted it did not have a “totally dry” policy, that the facility was “never going to be one hundred percent clear of snow and ice,” and there was a issue with snow and ice under trailers, Defendant moved for both partial and total summary judgment.

Holding

Rejecting Plaintiff’s arguments that Defendant owed her a duty since she was an independent contractor, the Court ruled that such arguments were misplaced, since that doctrine deals with situations where the independent contractor itself is negligent. The Court also rejected Plaintiff’s argument that the Defendant made an attempt to remove the snow and ice, that Defendant made the lot conditions worse, and that Plaintiff relied upon Defendant to make the lot safe for her use. In granting Defendant’s Motion for summary judgment, Judge Brann noted that the record evinced “thoroughly-established and comprehensive procedures,” and a “team effort” to remove snow and ice, and that none of the employees of Defendant “ever remembered a driver having an issue.”

Questions about this case can be directed to Joe Holko, at (610) 332-7002 or jholko@tthlaw.com.

Hites v. Pa. Interscholastic Athletic Assocs., Inc.

• Pennsylvania Commonwealth Court
• No. 8 C.D. 2017
• Decided: October 10, 2017

Commonwealth Court affirms the denial of PIAA’s Preliminary Objections arguing lack of a duty to student athletes with regard to post-concussion-related injuries holding that PIAA may owe a duty to student athletes.

Background

Three named Plaintiffs and others similarly situated sued the Pennsylvania Interscholastic Athletic Association, Inc. (PIAA) for damages arising from concussion-related injuries sustained during participation in PIAA-regulated sports. PIAA filed extensive Preliminary Objections including several objections where PIAA argued that they did not owe a duty to Plaintiffs. The Trial Court sustained the Preliminary Objections in part and denied the Preliminary Objections in part. The Commonwealth Court granted PIAA’s Petition for Permission of Appeal with regard to four negligence-based issues relating to duty and causation.

Holding

The Commonwealth Court affirmed the Order denying PIAA’s Preliminary Objections with regard to duty and causation. The Court held that the Legislature’s adoption of the Safety in Youth Sports Act (SYSA) did not render Plaintiffs’ negligence claims non-justiciable. Second, the Court held that there was no error in denying PIAA’s Preliminary Objection seeking dismissal of the negligence claim pursuant to the “inherent risk/no duty rule.” Third, the Court held that public policy considerations were not sufficient to defeat Plaintiffs’ negligence claims. Finally, the Court held that Plaintiffs had averred sufficient facts to demonstrate that PIAA’s pre- and post-concussion acts or omissions were a substantial factor in bringing about the harm alleged by Plaintiffs.

Questions about this case can be directed to Hugh O’Neill, at (717) 255-7629 or honeill@tthlaw.com.

Nationwide Mut. Ins. Co. v. Moore

• Pennsylvania Superior Court
• No. 329 WDA 2017
• Decided: October 6, 2017

An individual seeking first-party benefits under an auto insurance policy may be compelled to undergo an independent medical examination as long as the insurer shows good cause, regardless of whether the individual seeking coverage is a party to the policy.

Background

A bicycle rider was hit and injured by a Nationwide insured driver. The injured rider submitted medical bills to Nationwide, who paid first-party medical benefits to him exceeding $90,000. One month after being discharged from physical therapy, he reported to a hospital complaining of back pain, which he told medical providers was attributable to moving furniture. Nevertheless, the individual submitted the associated medical bills to Nationwide and claimed that the same were related to the motor vehicle accident.

Nationwide requested that the individual submit to an IME under the terms of the policy, but the individual refused. Nationwide subsequently filed a petition to compel the IME in the trial court. The Trial Court granted the petition to compel the individual to undergo an IME.

Holding

The Superior Court affirmed. Section 1796 of the Motor Vehicle Code provides that an insurer is permitted to compel an individual to undergo an IME when the insurer shows good cause for the IME in connection with the insurance claim. The statute does not distinguish between contractual beneficiaries and statutory beneficiaries, meaning that any person seeking first-party benefits under an auto policy can be compelled to undergo an IME.

The Superior Court also found that the Trial Court had made a specific finding that the insurer had good cause to seek the IME, based on the medical notes indicating that the individual initially blamed the back pain on moving furniture and not the accident. The Court rejected the individual’s argument that an insurer has to show that the IME would “substantially aid the insurer in evaluating the claim”, consistent with previous holdings finding this added burden contrary to statutory intent.

Questions about this case may be directed to Matt Clayberger, at (717) 237-7150 or mclayberger@tthlaw.com.

Meerhoff v. McCray

• Pennsylvania Superior Court
• No. 1392 WDA 2016
• Decided: September 29, 2017

Superior Court upholds grant of summary judgment to each Defendant because, inter alia, a private, non-commercial, homeowner does not have a duty to install smoke alarms or carbon monoxide detectors.

Background

Plaintiff’s decedent, Meerhoff, was killed, and Plaintiff Little seriously injured, in a fire that consumed Defendant McCray’s farmhouse. Plaintiff Little is Defendant McCray’s grandson and had permission to use the residence. Prior to the fire, Plaintiffs were drinking heavily, and drove recklessly around the property in a pick up truck, damaging power lines and farm equipment. Plaintiffs alleged that Defendant McCray, and his company McCray Aluminium, were negligent for failing to install smoke detectors and/or carbon monoxide detectors.

Defendants, including the Pennsylvania Electric Company (Penelec), filed Motions for Summary Judgment. The trial court granted the Motions, finding that: Plaintiffs failed to demonstrate a cause of action for negligence against Defendants; Plaintiffs failed to substitute a qualified expert to show the cause of the fire after Plaintiffs’ initial expert was deemed unqualified; Plaintiffs failed to respond or object to Defendant McCray Aluminum’s Requests for Admissions; Plaintiffs failed to submit sufficient evidence to “pierce the corporate veil”; and Plaintiffs failed to demonstrate that the negligence of the Defendants was greater than the “wanton comparative negligence” of the Plaintiffs.

Holding

The Superior Court affirmed. First, the Court agreed that a private, non-commercial, homeowner does not have a duty to install smoke alarms or carbon monoxide detectors. The Court stated that the legislature should address the issue, if at all, rather than the Court. The Court then found that Defendant McCray Aluminum’s Requests for Admissions were deemed admitted, despite being served three days before the discovery deadline, as Plaintiffs never objected. The deemed admissions included an admission that McCray Aluminium did not have an ownership interest in the farmhouse and did not design, construct or maintain the farmhouse. As McCray Aluminium was not the owner of the farmhouse, the Court found that there was no reason to “pierce the corporate veil” as alleged by Plaintiffs. The Superior Court also affirmed the ruling which struck the expert report’s of James L. Glancey and Jack Vinson. The Court agreed that both experts were unqualified to give opinions regarding the cause of the fire, as they were mechanical, and not electrical, engineers. The Court finally affirmed the finding that, to the extent Plaintiffs could demonstrate a cause of action for negligence against Defendant Penelec, it was drastically exceeded by Plaintiffs’ own willful and wanton misconduct. The Court recognized that questions of comparative negligence are usually questions for the jury. However, Plaintiffs’ drunken conduct clearly constitutes one of the rare cases where summary judgment on the issue of comparative negligence is appropriate.

Questions about this case can be directed to Joseph Shields, at (570) 820-0240 or jshields@tthlaw.com.

Good v. Frankie & Eddie’s Hanover Inn, LLP

• Pennsylvania Superior Court
• 2017 Pa. Super. 302, No. 2006 MDA 2016
• Decided: September 21, 2017

Superior Court found no error in Trial Court’s application of a lower insurance “each occurrence” policy limit, although it was not defined under the policy, where the only reasonable interpretation was for “each occurrence” to mean the lower “each common cause” limit that was referenced in the policy.

Background

Plaintiff wife, individually and as executrix of husband’s estate, brought a wrongful death and survival action against the Hanover Inn, a bar/restaurant that had served alcohol to Defendant driver who struck and killed Plaintiff’s husband. Hanover Inn’s commercial insurance policy included liquor liability coverage. The policy’s liquor liability coverage form provided for coverage with an “Aggregate Limit,” as well as an “Each Common Cause Limit.” However, the policy’s declarations page specified that the liquor liability coverage limit for “Each Occurrence” is $500,000, and the “Aggregate” limit is $1,000,000. A dispute arose regarding the applicable amount of coverage under the policy.

Plaintiff wife brought a declaratory judgment action against insurer seeking a ruling that the applicable liability limit was the $1,000,000 “Aggregate Limit,” as opposed to the $500,000 “Each Occurrence” limit. The Trial Court ruled that the lower “Each Occurrence/Each Common Cause Limit” was applicable, rather than the higher “Aggregate Limit.” Plaintiff argued that the Trial Court erred because there was no definition of “Each Common Cause Limit” in the declarations page, that “Each Common Cause Limit” and “Each Occurrence” limit were not interchangeable, and that the ambiguity should result in coverage under the $1,000,000 “Aggregate Limit.”

Holding

The Superior Court found no error in the lower court’s interpretation of the insurance policy. The parties’ intentions were clear that a quote was obtained for an insurance policy that included liquor liability with two distinct limits. Although the lower limit was referenced as “Each Occurrence” in the policy, it would defeat the clear and unambiguous intentions of the parties to determine that it meant anything other than the “Each Common Cause Limit” as set out in the liquor liability coverage form.”

Questions about this case can be directed to Brook Dirlam, at (412) 926-1438 or bdirlam@tthlaw.com.

Safe Auto Ins. Co. v. Oriental-Guillermo

• Pennsylvania Superior Court
• 2017 Pa. Super. 297, No. 3226 EDA 2016
• Decided: September 18, 2017

The Superior Court holds that an automobile insurance policy provision excluding coverage for non-family members residing in the same household as the named insured, but not specifically included under the policy, is enforceable.

Background

The case originated as a Declaratory Judgment action filed by Safe Auto Insurance seeking a determination that it was not obligated to provide insurance coverage to an alleged tortfeasor who was driving the vehicle insured by Safe Auto at the time of a 2013 motor vehicle accident under its “Unlisted Resident Driver Exclusion.” The vehicle had been insured by the owner of the vehicle—the tortfeasor’s boyfriend. The tortfeasor lived with the owner, but was not related to him and was not listed as a driver on the automobile policy. The Lehigh County Court of Common Pleas granted summary judgment in favor of Safe Auto. Plaintiffs’ appealed.

Holding

The Superior Court quickly resolved the argument that the Unlisted Resident Driver Exclusion did not apply, as under the facts of the case, it was apparent that the tortfeasor resided with the owner of the insured vehicle, but was not listed on the policy. With respect to the validity of the exclusion, the Court noted that under Pennsylvania law, the obligation of ensuring all drivers of the vehicle are insured rested with the owner of the vehicle. The insurance company was not required to conduct an independent investigation into all residents of the owner’s household. Noting that public policy favored placing the identification of resident, non-family members, on the insured rather than the insurer, the Court held that the exclusion was valid.

Questions about this case can be directed to Lindsey Cook, at (717) 237-7111 or lcook@tthlaw.com.

Neifert v. Speedway LLC and Correll

• Pennsylvania Superior Court
• No. 1891 MDA 2016
• Decided: September 14, 2017

Summary Judgment affirmed for Defendant where Plaintiff fell on patch of black ice in parking lot that formed naturally during a period of “generally slippery conditions” and where Defendant had no notice.

Background

Plaintiff slipped and fell on ice in Defendant’s parking lot and filed a negligence action against the store and its manager. To recover, the Plaintiff must prove that the ice had accumulated in ridges or elevations of such size and character to unreasonably obstruct travel, that the property owner had actual or constructive notice of the condition, and that it was the dangerous accumulation of ice that caused the fall. At the close of discovery, Defendants filed a Motion for Summary Judgment, relying on the doctrine of hills and ridges, which protects a landowner from liability for generally slippery conditions on its property resulting from ice/snow where the owner had not permitted ice to unreasonably accumulate in ridges or elevations. The Trial Court held that the doctrine applied and precluded recovery.

Holding

On appeal, Plaintiff argued that there were disputed issues of fact concerning both the weather conditions/source of the ice patch at the time of his fall, and whether Defendants had actual or constructive notice of the ice. Upon review of the testimony concerning both issues, the Superior Court affirmed the Trial Court finding that the general community experienced icy conditions in the form of freezing precipitation that had developed in only thirty minutes leading up to the Plaintiff’s fall. There was no testimony to support Plaintiff’s claim that he fell on a specific localized patch of ice, nor evidence of any ridges or elevations obstructing his travel. Further, the Court agreed that the store had no knowledge of the “rapidly” changing weather conditions and ice formation on the parking lot.

Questions about this case can be directed to Julia Morrison, at (717) 441-7056 or jmorrison@tthlaw.com.

Dittman v. UPMC

• Pennsylvania Superior Court
• 154 A.3d 318, No. 971 WDA 2015
• Decided: January 12, 2017

In the absence of a legislatively-imposed duty, Superior Court finds no basis for imposing a duty on employers to protect their employees’ electronically-stored information and data from cyber hackers.

Background

Class action lawsuit involving the theft by cyber hackers of personally identifiable information (PII), including Social Security numbers and bank information, of approximately 62,000 UPMC employees. The stolen PII was provided to UPMC by the employees as a condition precedent of employment. The class was divided into two sub-classes: employees who suffered actual, concrete, damages, and employees who asserted speculative damages. Plaintiffs asserted negligence and breach of implied contract causes of action.

In addressing the Commonwealth’s first major data breach litigation, the lower court dismissed the suit on preliminary objections, finding that UPMC owed no duty of care to protect its employees’ PII from a cyber attack. The lower court held that the creation of such a duty was the responsibility of the legislature and that in the legislature’s silence, the Court would not create such a duty. As to Plaintiffs’ breach of implied contract claim, the lower court found there to be no agreement between the parties under which UPMC agreed to be liable to its employees for the criminal acts of third parties.

Holding

In affirming, the Superior Court performed a multi-factor analysis to reach its conclusion that no duty of care exists under the facts presented. The Superior Court held that despite the foreseeability of a cyber attack, the social utility of electronically storing employee information is too great to impose a duty to protect employees’ electronically-stored PII from cyber hackers. It was further held that the creation of a duty is unnecessary to incentivize companies to protect employees’ PII and that employers need not incur significant added costs to increase security measures when there is no true way to prevent cyber attacks. Finally, the Superior Court held that Plaintiffs did not provide their PII to UPMC for the consideration of its safe keeping, but for employment purposes, and in the absence of consideration, there can be no contract, implied or otherwise.

On September 12, 2017, the Pennsylvania Supreme Court granted Plaintiffs’ Petition for Allowance of Appeal. TT&H will provide further updates as this case develops.

Questions about this case can be directed to Jeff Criswell, at (412) 926-1443 or jcriswell@tthlaw.com.

MARYLAND CASE SUMMARIES

Moore v. Nat’l R.R. Passenger Corp.

• United States District Court for the District of Maryland
• No. ELH-16-3015
• Decided: October 5, 2017

To make out a prima facie case of negligence in premises liability, a plaintiff must allege facts about the length of time that a defect existed in order to give rise to constructive notice to a landowner.

Background

Bessie Moore, a pro se plaintiff, sued National Railroad Passenger Corporation (Amtrak) for injuries sustained when she tripped over a luggage strap while boarding an Amtrak train in Baltimore. The United States District Court for the District of Maryland dismissed Ms. Moore’s suit without prejudice pursuant to Fed. R. Civ. P. 12(b)(6). The Court agreed with Amtrak that Ms. Moore’s Complaint failed to allege the elements of a prima facie case of negligence because it failed to allege that Amtrak had actual or constructive knowledge that the luggage strap was a tripping hazard. Ms. Moore then filed an unexecuted Amended Complaint alleging that “defendant was negligent.” Amtrak again moved to dismiss under Rule 12(b)(6).

The Clerk sent Ms. Moore a letter notifying her of Amtrak’s motion to dismiss and the potential of dismissal if she failed to respond to the motion. On June 14, 2017, the Clerk received a Response to the Defendant’s Answer to her Amended Complaint. The Court informed Ms. Moore that she did not need to file such a response but that she could file a response to Amtrak’s motion to dismiss. Ms. Moore subsequently filed another Response to the Defendant’s Answer to her Amended Complaint.

Holding

The Court granted Amtrak’s motion and dismissed the case with prejudice. In granting the motion the Court explained that it has an obligation to construe liberally the pleadings filed by pro se litigants and to hold such litigants to lesser standards than attorneys. For that reason, the Court considered Ms. Moore’s Response to Amtrak’s Answer as an Answer to Amtrak’s Motion to Dismiss. The Court also considered all of the factual allegations contained in Ms. Moore’s Amended Complaint as incorporated in her Answer. However, because Ms. Moore’s Amended Complaint failed to plead facts that showed that Amtrak caused the luggage strap to obstruct the aisle of the rail car, that Amtrak had actual knowledge of the strap’s presence, or that the strap was in the aisle for a period of time of sufficient duration to constitute constructive notice to Amtrak, the Court found that Ms. Moore’s “Answer” and Amended Complaint failed to allege facts that, even if construed as true, stated a claim upon which relief could be granted.

Questions about this case can be directed to Salvatore Cardile, at (410) 653-0460 or scardile@tthlaw.com.

Pa. Nat’l Mut. Cas. Ins. Co. v. Jacob Dackman & Sons, LLC

• United States District Court for the District of Maryland
• No. RDB-16-2640
• Decided: September 14, 2017

In a lead paint claim, an insurer is liable for its “pro rata time-on-the risk” or for that period of time it was on the risk compared to the entire period during which damages occurred. The damages period is calculated from when the Plaintiff was first exposed to the lead polluted property to when he vacated the property.

Background

Daniel Heggie filed a lead paint lawsuit in the Circuit Court for Baltimore City against his former landlords, Jacob Dackman & Sons, LLC and Elliot Dackman (Dackman Parties). Following a jury trial, a judgment was entered against the Dackman Parties for $1,006,469 (Underlying Judgment). Pennsylvania National Mutual Casualty Insurance Company (Penn National) insured the Dackman Parties’ property where Mr. Heggie lived for a period of time. Pursuant to the relevant policies, Penn National was required to indemnify the Dackman Parties for the period of June 1, 1996 through August 1, 1997—426 days. Mr. Heggie lived in the subject property from January 12, 1994 through September 9, 1998. Penn National asserted that the damages period was from January 12, 1994 when Mr. Heggie moved into the subject property to February 13, 2001, the date of his final elevated blood lead level (BLL) test; therefore, Penn National’s liability should be limited to 16.45% of the Underlying Judgment or $165,606.72. Mr. Heggie asserted that the damages period runs from August 18, 1995, the date of his first elevated BLL, to July 8, 1997, the date of his last elevated BLL test before vacating the subject property. Penn National paid Mr. Heggie $165,606.72 and filed a Motion for Summary Judgment seeking a declaration that it satisfied its portion of the Underlying Judgment.

Holding

The U. S. District Court for the District of Maryland held that Penn National’s liability would be evaluated by the “pro rata time-on-the risk” principle, i.e., the period of time it was on the risk compared to the entire period during which damages occurred. The “time-on-the risk” period is when the Plaintiff is first exposed to the lead polluted property to when he vacated the property. In this case, that period was 1,701 days. Therefore, Penn National was liable for 426/1701 or 25% of the Underlying Judgment–$251,617.25.

Questions about this case can be directed to Renita Collins, at (410) 653-0460 or rcollins@tthlaw.com.

NEW JERSEY CASE SUMMARIES

Harris v. Chavez-Echeverry

• New Jersey Superior Court, Appellate Division
• No. A-3134-16T1
• Decided: October 24, 2017

Appellate Court reverses summary judgment, indicating there are fact issues to determine whether a driver of a dealership-owned vehicle involved in an accident was in the course and scope of employment and whether negligent entrustment issues arise.

Background

Defendant driver was operating a dealership vehicle and struck Plaintiff’s motorcycle, causing serious injury. At the time of the accident, the Defendant driver was employed by Co-defendant as a “lot person.” His duties as a lot person included moving vehicles on the lot, picking up/dropping off clients at their homes, and fueling dealership vehicles. The accident occurred while the Defendant was driving a vehicle first home to lock his door, and then to fuel the vehicle. The dealership moved for summary judgment, which was granted, indicating at the time of the incident the driver was not operating within the course and scope of his duties as an employee.

Holding

The Appellate Court reversed, indicating genuine issues of material fact existed as to whether the driver was in fact, in the course and scope of his employment. In addition, the Court noted there were issues of fact as to whether or not it was appropriate for the dealership to give the driver access to a vehicle. Thus, the Court reversed the Summary Judgment Order.

Questions about this case can be directed to James Dodd-o, at (610) 332-7000 or jdoddo@tthlaw.com.

Pagan v. Newark Housing Auth.

• New Jersey Superior Court, Appellate Division
• No. L-1541-12
• Decided: October 2, 2017

A public entity, like a housing authority, is immune from liability stemming from criminal activity of third parties.

Background

Plaintiff Pagan filed an action for injuries sustained due to an assault on January 30, 2011 inside her apartment which was owned and managed by Defendant Newark Housing Authority (NHA). Although she admitted having no proof of a connection between the two events, Plaintiff believed the attack was in retaliation for her actions in April 2010, following her six year old son witnessing a murder outside the apartment. Plaintiff reported the murder to NHA’s management, complaining her son was traumatized by the events and requested transfer to another NHA property. Prior to the assault, NHA offered Plaintiff units at other sites, but Plaintiff refused both citing the unit’s poor condition or criminal activity at the sites. Plaintiff was on the authority’s waiting list for vacancies when the assault occurred. Plaintiff alleged NHA was negligent for numerous reason including: failing to supervise the complex’s common areas and maintain the premises in a safe condition; and failing to relocate Plaintiff. Defendant NHA moved for summary judgment, which was granted, based on the Court’s finding that the NHA could not be liable for the criminal acts of third parties and the NHA’s conduct was not “palpably unreasonable.”

Holding

In affirming, the Superior Court explained that the mere presence of persons with criminal intent or purpose does not constitute a dangerous condition within the meaning of the Torts Claims Act, and the Trial Court correctly found that the NHA was not liable. With respect to the claim based on failure to relocate Plaintiff, the Superior Court agreed that Plaintiff provided nothing but speculation that the assault in her apartment was a proximate result of NHA’s alleged negligence in dealing with Plaintiff’s transfer requests. Plaintiff conceded that she had no proof that the 2011 attack in her apartment was retribution for her report of her son having witnessed the April, 2010 murder, or that it was in any way related to the vandalism.

Questions about this case can be directed to Paraskevoula Mamounas, at (610) 332-7029 or pmamounas@tthlaw.com.

Hockman v. Burrellys LLC

• New Jersey Superior Court, Appellate Division
• No. L-0365-14; 2017 WL 4341891
• Decided: September 12, 2017

Superior Court holds Trial Judge erred by applying New Jersey’s mode-of-operation doctrine and remanded the matter for a new trial.

Background

Plaintiff, Louise Hockman, entered a sandwich shop owned and operated by Nicole Burrell and Burrellys, LLC (collectively “Burrellys”). Upon noticing her vehicle was improperly parked, she began to exit the store and allegedly slipped and fell on an unknown liquid, suffering injuries to her right leg. Following a jury trial, Burrellys was determined to be 80% liable for Hockman’s injuries, with Hockman bearing 20% of the responsibility. The jury awarded Hockman $1,280,081.67.

Arguing that the Trial Judge improperly applied New Jersey’s mode-of-operation doctrine, which creates a rebuttable presumption of negligence against a property owner where the mode of a self-service business operation creates a dangerous condition, Burrellys appealed from the Trial Court’s Order denying a Motion for reconsideration, a new trial and remittitur. Burrellys also appealed the Trial Court’s denial of Motions in limine to bar the testimony of Plaintiff’s liability expert.

Holding

The Superior Court remanded the matter for a new trial after holding that the Trial Court erred in applying the mode-of-operation doctrine. The Superior Court noted that Hockman did not present sufficient evidence to show that the doctrine applied. There was no evidence that the dangerous condition in this case was due to the self-service aspects of the sandwich shop, including the customers’ handling of the items in the refrigerator near the area of the fall. The facts did not present a situation where the customers’ handling of the items increased the risk that a dangerous condition could go undetected and patrons would be injured. By charging the jury on the mode-of-operation doctrine, the jury could find negligence without finding Burrellys had actual or constructive notice of the alleged dangerous condition. The Superior Court held that under the circumstances of this case, the mode-of-operation charge was improper and the error required a new trial.

In addition, the Superior Court held that admission of testimony by Hockman’s liability expert regarding the source of the liquid exceeded the scope of the in limine determination. According to the Court, the admission of this improper testimony was clearly capable of misleading the jury, thereby causing an unjust result and warranting a new trial.

Questions about this case can be directed to Michael Bishop, at (610) 332-7009 or mbishop@tthlaw.com.