TT&H eNotes: Liability – October 2017

October 01, 2017

TT&H LAWYERS IN COURT

TT&H Attorney Daniel Grill wins birth injury case involving rare condition known as “compartment syndrome.”

On September 15, 2017, following a lengthy multi-party trial, TT&H Attorney Dan Grill won a jury verdict for the defense in the Court of Common Pleas of Dauphin County, Pennsylvania. The action was filed on behalf of a child who, though now five years old, had developed compartment syndrome in his arm, a rare injury that in this instance occurred during labor and delivery. At trial, Attorney Grill successfully argued that his client and the other medical Defendants complied with the applicable standard of care throughout the labor and delivery. The several Defendants also presented expert testimony that there was no method to time, predict, or prevent compartment syndrome.

For more information, please contact Daniel Grill at (717) 237-7115 or dgrill@tthlaw.com.

CLIENT ADVISORY

PENNSYLVANIA CLIENT ADVISORY

Superior Court withdraws prior decision in Wilson v. U.S. Security Assocs., Inc. and permits en banc reargument.

As some readers may recall, in the August 2017 liability eNotes, TT&H reported on a July 18, 2017 decision from the Superior Court in the case of Wilson v. U.S. Security Assocs., Inc., 2017 Pa. Super. 226. In that decision, a three-judge panel of the Superior Court granted a defendant’s motion for judgment notwithstanding the verdict, overturning a jury award of over $38 million in punitive damages arising out of a workplace shooting at Kraft Foods that killed two co-workers of the shooter. Subsequent to that decision, however, on September 26, 2017, following an application by the plaintiffs, the Superior Court granted en banc reargument. The Court’s Order provides that the July 18 decision is withdrawn, with this matter to be listed before the next available en banc panel. The Order also includes a detailed briefing schedule.

TT&H will continue to monitor this action and will issue a further update once the Superior Court issues its en banc decision. In the meantime, questions about this case can be directed to Joe Holko, at (610) 332-7005 or jholko@tthlaw.com.

SIGNIFICANT CASE SUMMARIES

FEDERAL CASE SUMMARIES

Bassetti v. Boyertown Area School District

United States District Court for the Eastern District of Pennsylvania
No. 17-1137
Decided: August 14, 2017

Background

While Plaintiff, Ms. Bassetti, was employed by Defendant, Boyertown Area School District, as a substitute teacher, she sought new teaching positions in other districts. Plaintiff interviewed with Pottstown School District and was offered and accepted a full-time teaching position. Plaintiff reported for her first day of work, but was informed by Pottstown School District it was withdrawing her offer of employment because Boyertown Area School District had informed them that Plaintiff engaged in inappropriate contact and language with her former students.
Plaintiff filed a stigma-plus action against Defendant, pursuant to 42 U.S.C. § 1983, in the U.S. District Court for the Eastern District of Pennsylvania. Plaintiff’s complaint asserted the statements made by Boyertown Area School District regarding her relationship with former students were defamatory and false. Defendant filed a motion to dismiss pursuant to Rule 12(b)(6).

Holding

The Eastern District granted Defendant’s motion to dismiss because Plaintiff failed to establish the plus prong, which is necessary to be successful in a stigma-plus action. Under federal law, a stigma-plus action requires a plaintiff demonstrate her employer created a false and defamatory impression resulting in adverse employment action. The Court held Plaintiff set forth grounds for the stigma element by averring a Boyertown employee made false defamatory statements about her to a Pottstown employee. With regard to the plus component, the Court held that the action at issue must be performed by the defendant-employer. Because the adverse action, withdrawing Plaintiff’s offer of employment, was by Pottstown School District, a third-party to the action, as opposed to Boyertown Area School District, the plus component could not be satisfied.

Questions about this case can be directed to Anthony Cox, at (717) 255-7234 or acox@tthlaw.com. Anthony Cox recently joined the firm’s Harrisburg office and is working to be admitted to the Pennsylvania bar.

Brieker v. Barbeque Integrated, Inc.

United States District Court for the Eastern District of Pennsylvania
No. 16-0137, 2017 WL 3412461
Decided: August 8, 2017

Property owner has no duty to an employee of an independent contractor who sets his ladder on ice to fix an ice machine. The “retained control” exception does not apply even though the owner tried to clean up the ice just prior to the ladder being erected.

Background

Plaintiff, an employee of EcoLab, Inc., was sent to fix an ice machine at Smokey Bones. After determining the ice machine needed a part, he ordered it on a Friday and returned the next Monday to install it. When he arrived, he discovered that the owner had tried to squeegee and broom the ice and water from the floor in front of the ice machine to a nearby grate. Plaintiff then went to his truck and returned with a six foot step ladder to access the ice machine and saw ice melting on the floor where he was just about to set his ladder. Without waiting for the owner to remove the melting ice and water, and without cleaning the area himself, he used his boot to push some of the ice away, he set his ladder on top of the ice and water covered floor, and started to climb up. The ladder then shifted on the icy floor, causing him to lose his balance. Although Plaintiff tried to descend the ladder, in doing so, his foot slipped on ice on the floor, causing him to fall backward hitting his back on a wall and his head on a doorframe.

Holding

The Court reviewed the general rule that an owner does not owe a duty to an independent contractor with respect to obviously dangerous conditions on the portion of the land in the possession of the independent contractor. Because the Plaintiff agreed the “peculiar risk doctrine” did not apply, the Court went on to discuss the “retained control” exception and found it also did not apply. After noting that the “retained control” exception must be construed narrowly, and almost never found to apply, the Court reiterated Pennsylvania law that “[t]here must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.” Moreover, the Court referenced the following examples from Pennsylvania case law where the alleged “retained control” was inadequate to support the exception: frequent visits to the job site by the owner, the hiring of a site manager by the owner, the owner’s requiring the contractor’s employees to watch a safety video, the owner’s directing a discrete activity with respect to the work, the owner’s manager instructing a contractor’s employees to stop engaging in what he considered unsafe practices, and even a property owner retaining a certain degree of authority over safety issues, such as supervising and enforcing safety requirements, and imposing its own safety requirements at a worksite. All did not constitute control for purposes of imposing liability. Accordingly, summary judgment was granted in favor of Smokey Bones.

Questions regarding this case can be directed to Joe Holko, at (610) 332-7005 or jholko@tthlaw.com.

Am. Builders Ins. Co. v. Custom Installations Contracting Servs., Inc.

United States District Court for the Western District of Pennsylvania
No. 3:15-295
Decided: August 18, 2017

A federal court lacks jurisdiction to rescind a workers’ compensation insurance policy procured on the basis of misrepresentations in the application for the policy. Rather, such relief must be sought in the workers’ compensation arena.

Background

American Builders issued workers’ compensation insurance to a narrow market. Specifically, it would not issue policies to employers that engaged in roofing or that worked above the height of 15 feet. Through mistake or misrepresentation, the employer, Custom, indicated that it did no such work. Two months after it obtained a policy, an employee fell from a roof and was severely injured. Over the life of the claim, the insurer paid more than a million dollars in workers’ compensation benefits.

The insurer filed an action in federal court seeking rescission of the policy due to misrepresentations in the application. The Court granted an unopposed motion for summary judgment allowing rescission. Relying upon the rescission order, the insurer filed a petition in the ongoing workers’ compensation case seeking to terminate its obligation to pay benefits. This petition was opposed on several fronts. The workers’ compensation judge deferred ruling on the insurer’s petition and issued a temporary stay requiring the insurer to continue to pay medical benefits. The insurer then returned to the federal court for an injunction against all parties from attempting to circumvent the rescission order. This motion prompted the federal court to re-examine its jurisdiction. A number of other procedural motions and maneuvers ensued.

Holding

The federal court determined that it lacked jurisdiction to entertain the claim for rescission and that, instead, the claim could only be pursued before a workers’ compensation judge. Accordingly, the federal court vacated the original rescission order and it dismissed the action.

The court relied upon the exclusivity provision of the Pennsylvania Workmen’s Compensation Act, 77 P.S. § 481. This section is part of the historical quid pro quo whereby workers obtained a no-fault based system of assured compensation in exchange for immunity of employers and their insurers from common law liabilities. While this provision is typically invoked to prevent injured workers from seeking additional compensation from their employers via civil actions in the courts, the court in this case applied it broadly to preclude other forms of common law litigation that are arguably connected to the work-related injuries. The Court explained that if insurers receive the benefit of being shielded from separate bad faith lawsuits, those same companies cannot file separate lawsuits for related insurance claims. The Court further explained that matters of insurance coverage for worker’s compensation claims are indeed within the jurisdiction of the administrative process established by law for adjudication of claims by injured workers. Allowing a parallel case in federal court to determine coverage could threaten the stability of the worker’s compensation scheme.

Questions about this case can be directed to Louis Long, at (412) 926-1424 or llong@tthlaw.com.

PENNSYLVANIA CASE SUMMARIES

Coughlin v. Massaquoi

Pennsylvania Supreme Court
No. 32 EAP 2016
Decided: September 28, 2017

Supreme Court affirms lower court rulings allowing the admission of evidence of a decedent’s BAC at trial.

Background

Plaintiff Coughlin brought a negligence action against Defendant Massaquoi, after Plaintiff’s adult son, Thomas Coughlin, was struck and killed by Ms. Massaquoi’s vehicle while he was crossing the street in Northeast Philadelphia. There were no eyewitnesses to the accident, and Ms. Massaquoi did not see Mr. Coughlin before impact. The Trial Court denied Plaintiff’s motion in limine to exclude evidence of Thomas Coughlin’s intoxication, including a post-mortem toxicology report and the expert testimony of Dr. Richard Saferstein. The toxicology report revealed that Mr. Coughlin had a BAC of .313. Dr. Saferstein testified that this BAC level would have rendered an average person unfit to cross the street. The jury determined that Defendant was negligent at the time of the accident, but determined that her negligence was not the factual cause of Mr. Coughlin’s death. Plaintiff appealed the verdict, arguing that the trial court erred by admitting Mr. Coughlin’s post-mortem toxicology report, and Dr. Saferstein’s expert testimony, without any corroborating eyewitness testimony to establish Mr. Coughlin’s intoxication at the time of the accident. After the trial court’s ruling was affirmed by the Superior Court, a further appeal was made to the Pennsylvania Supreme Court.

Holding

The Supreme Court refused to adopt a bright line rule requiring independent corroborating evidence of a pedestrian’s intoxication before admitting evidence of the pedestrian’s BAC. The Court rejected the Appellant’s argument that BAC evidence is so inherently prejudicial that it should only be admitted if there is independent corroborating evidence of the pedestrian’s intoxication, other than expert testimony about the pedestrian’s BAC. Rather, the Court found that the admissibility of BAC evidence against a pedestrian is within the discretion of the trial court if the trial court determines that it reasonably establishes a person’s unfitness to cross the street. The Court then found that the trial court had properly exercised its discretion in this instance, where the record included Dr. Saferstein’s expert testimony regarding the effects of Mr. Coughlin’s BAC on the average person. The Supreme Court thus affirmed the Superior Court’s decision, which decision was previously summarized in this firm’s May 2016 liability eNotes.

Questions about this case can be directed to Eric Horst, at (717) 441-7056 or ehorst@tthlaw.com.

Rancosky v. Washington Nat’l Ins. Co.

Pennsylvania Supreme Court
No. 28 WAP 2016
Decided: September 28, 2017

In a case of first impression, the Supreme Court of Pennsylvania finally clarified that the proper test for statutory bad faith is the two-prong test adopted by the Superior Court in Terletsky, i.e., (1) that the insurer did not have a reasonable basis for denying benefits under the policy and (2) that the insurer knew of or recklessly disregarded its lack of a reasonable basis.

Background

Plaintiff obtained a cancer insurance policy from defendant in the early 1990’s. Based on the terms of the policy, an insured is no longer required to make premium payments after he/she has been diagnosed with cancer and becomes disabled. Years after the purchase of the policy, the plaintiff was diagnosed with ovarian cancer and became disabled. She submitted all necessary paperwork to the insurer to show her disability, such that she no longer had to make premium payments, but the note that she submitted from her physician incorrectly stated the date on which she became disabled.

After several years of making payments to plaintiff under the cancer policy, the defendant denied insurance coverage under the policy for plaintiff’s failure to make premium payments. The alleged failure to make premium payments was based on a misunderstanding, since plaintiff had become disabled by the time she stopped making payments, but her doctor incorrectly stated that she became disabled at a later date. Plaintiff attempted to contest the denial on several occasions, and even issued authorizations to the insurer to contact her employer and physician to confirm the actual date of her disability, but the insurer failed to conduct any investigation.

Plaintiff filed suit against the insurer alleging statutory bad faith. The Trial Court granted summary judgment in favor of the insurer, reasoning that the plaintiff had failed to adduce evidence of ill will or self-interest on the part of the insurer. On appeal, the Superior Court reversed, explaining that evidence of self-interest or ill will is not a mandatory element of a statutory bad faith claim.

Holding

In a case of first impression, the Supreme Court finally adopted what hand long been considered the standard for bad faith claims under Pennsylvania’s bad faith statute, 42 Pa.C.S. § 8371. Specifically, the Supreme Court held that there is a two-prong test for establishing bad faith under Pennsylvania law, requiring a showing (1) that the insurer did not have a reasonable basis for denying benefits under the policy and (2) that the insurer knew of or recklessly disregarded its lack of a reasonable basis.

To arrive at its holding, the Supreme Court looked to principles of statutory construction to analyze the bad faith statute, since the statute itself is silent on the elements necessary to prevail on a bad faith claim. The Supreme Court recounted several early bad faith cases from around the United States, before finally discussing the two-prong test adopted by the Superior Court in 1994 in Terletsky. While the Supreme Court adopted the two-prong test set forth in Terletsky, the Court explained that the Terletsky decision created confusion over whether evidence of ill will or self-interest by the insurer is also required to establish bad faith. Ultimately, the Supreme Court concluded that ill will or self-interest on the part of the insured is not a necessary element of a bad faith claim, but is instead merely evidence probative of the second prong of the analysis, i.e., whether the insurer knew of or recklessly disregarded its lack of reasonable basis to deny benefits. The Supreme Court remanded the case back to the Trial Court with instructions to apply the proper two-prong standard to determine whether the insurer acted in bad faith.

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

ARRO Consulting, Inc. v. Bennett, Brewer & Assocs., LLC

Pennsylvania Superior Court
No. 1673 MDA 2015
Decided: September 5, 2017

By signing a forum selection clause requiring that litigation be brought in Pennsylvania, an out-of-state Defendant consents to Pennsylvania jurisdiction.

Background

In this non-precedential decision, the Superior Court reversed a Lancaster County Court decision and held that an out-of-state Defendant had consented to Pennsylvania jurisdiction by signing a forum selection clause in its contract with Plaintiff. Plaintiff was a consulting firm based in Pennsylvania. Defendant was a Maryland land development firm with no Pennsylvania offices. The two parties entered into a contract relating to work on a project in Maryland. When Plaintiff sought to sue Defendant due to breach of that contract, it brought the action in Lancaster County, Pennsylvania.

Defendant objected to Pennsylvania jurisdiction, pointing out that it had no contacts with the Commonwealth. Lancaster County Court agreed, holding that the U.S. Constitution did not allow it to exercise jurisdiction over the company, which had no place of business in Pennsylvania, no Pennsylvania employees, and no solicitation in Pennsylvania. Plaintiff appealed.

Holding

The Superior Court held that by executing a forum selection clause agreeing that any “litigation arising in any way from this Agreement shall be brought in the Courts of Common Pleas of Pennsylvania having jurisdiction,” the Defendant had consented to jurisdiction in the Commonwealth, regardless of whether or not it would otherwise have been subject to the authority of Pennsylvania Courts. The Court noted that an analysis of Defendant’s contacts with Pennsylvania was unnecessary and improper; jurisdiction existed simply because Defendant had agreed that it existed. Finding no reason to hold that contract otherwise unenforceable, the Superior Court reversed and remanded the case to the Lancaster County for further proceedings.

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

Wentzel v. Cammarano

Pennsylvania Superior Court
No. 1159 EDA 2016
Decided: July 19, 2017

The transmission of a physician’s impressions, diagnoses, and/or treatment plan, in anticipation of transferring a patient to a different facility, constitutes the furnishing of “healthcare services” for the purpose of determining venue.

Background

Plaintiff mother on behalf of her infant son brought a medical malpractice suit against Dr. Cammarano, various Reading facilities (i.e. Reading Hospital), St. Christopher’s, as well as other medical facilities, relative to the infant’s prenatal care. Shortly after birth, the infant began experiencing respiratory distress and an echocardiogram was performed at Reading Hospital. The report was then sent to St. Christopher’s, where it was reviewed by a physician. The report indicated pulmonary hypertension and tricuspid valve insufficiency requiring immediate treatment. The report was sent back to Reading Hospital the following evening with recommendations. The infant was then transferred the next day to St. Christopher’s for treatment.

Plaintiff mother filed the complaint with the Philadelphia Court of Common Pleas alleging that the delay of St. Christopher’s timely transmittal of the report and recommendations back to Reading Hospital constituted professional negligence as it denied the infant the immediate care that he required. Reading Hospital asserted that Berks County, not Philadelphia, was the proper venue as St. Christopher’s did not provide “healthcare services” for the purpose of establishing venue.

Holding

The Superior Court held that the Physician at St. Christopher’s in Philadelphia was expected to interpret and direct the infant’s care. Accordingly, the interpretation and transmission of the time-sensitive report constituted the furnishing of “healthcare services,” making venue proper in Philadelphia.

Questions about this case can be directed to John Lucy, at (717) 441-7067 or jlucy@tthlaw.com.

Crespo and Torralvo v. Hughes

Pennsylvania Superior Court
2017 Pa. Super. 230
Decided: July 18, 2017

The Superior Court remands because the Trial Court improperly disallowed cross-examination of Plaintiff Crespo on his guilty plea for Receiving Stolen Property, and refused to give a crimen falsi jury instruction based upon that guilty plea.

Background

Plaintiffs were power washing a brick wall when some of the hydrofluoric acid solution being used made contact with their hands. Plaintiffs treated at Temple Hospital with Dr. Hughes, who developed a plan to treat Plaintiffs with injections of lidocaine and calcium gluconate. Plaintiff Crespo received the injections in two fingers, which then became discolored and began weeping and bleeding. Plaintiff Torralvo received limited injections with the same symptoms. Plaintiff Crespo’s two fingers were ultimately partially amputated after becoming necrotic. Plaintiff Tottalvo had a partial amputation of one finger. Plaintiffs brought a medical malpractice suit against Dr. Hughes and Temple Hospital. Plaintiff Crespo was awarded $4,679,676 and Plaintiff Torralvo $538,000.

Holding

The Superior Court found that the Trial Court erred in not allowing Defendants to cross-examine Plaintiff Crespo regarding his guilty plea for Receiving Stolen Property (“RSP”). The Superior Court recognized that the credibility of a witness may be attacked with evidence that the witness was convicted, or pled guilty, to a crime of falsehood. Here, RSP is considered a crime of falsehood, such that it was reversible error to disallow cross-examination regarding this issue. The Trial Court further exacerbated the error by disallowing a crimen falsi jury instruction. Accordingly, the Superior Court remanded the matter for a new trial on damages with regard to Plaintiff Crespo.

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

MARYLAND CASE SUMMARIES

Davis v. Armacost

Maryland Court of Special Appeals
No. 822, September Term, 2016
Decided: September 1, 2017

In a medical malpractice case, it is reversible error for the trial court to give the foreseeable circumstances or reasonable person jury instruction. It also is reversible error for the trial court to set a deadline for deliberations while informing the jury that a mistrial will result if they failed to reach a unanimous verdict.

Background

Mark Armacost sued his neurosurgeon, Reginald J. Davis, M.D., for malpractice and failure to obtain informed consent relating to a procedure performed to remove damaged discs from Armacost’s cervical spine. When instructing the jury, the Trial Court included an instruction on the general negligence concept of foreseeable circumstances describing how a reasonable person changes conduct according to the circumstances known to that person. It also instructed the jury on the requisite standard of care for physicians in the medical malpractice context. After three days of deliberations, the jury sent a note asking what would happen if they did not reach a unanimous verdict. The Trial Court instructed that jury that a mistrial would result. The Trial Court also issued a modified Allen charge; he requested that the jurors deliberate for another hour, but told them they would not be asked to return the following day. The jury returned a verdict in favor of Mr. Armacost and against Dr. Davis on the malpractice issue, but for Dr. Davis on the informed consent issue. Dr. Davis appealed.

Holding

The Court of Special Appeals held that the general negligence jury instructions were erroneous and prejudicial. It reasoned that there has long been a distinction in Maryland law between the negligence standard for an ordinary person and that of a medical professional because medical malpractice claims are usually more complex than general negligence claims. The general standard would rely on the jury’s medical judgment—something no member of the jury is capable of giving. Thus, the medical malpractice instruction is required. The given instruction was prejudicial because Dr. Davis’ conduct was to be evaluated against his peers; using the general negligence standard allowed the jury to impermissibly speculate and substitute their judgment for that of a neurosurgeon, thus, prejudicing Dr. Davis. Finally, the Court of Special Appeals found that it was unduly coercive for the Trial Court to impose a 1-hour deadline while advising them that their failure to reach a unanimous decision would result in a mistrial. The Court’s conduct was equivalent to impermissible “verdict urging.”

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

Gilroy v. SVF Riva Annapolis LLC

Maryland Court of Special Appeals
No. 2610, September Term, 2015
Decided: September 1, 2017

The exceptions to Maryland’s statute of repose apply beyond asbestos-related cases.

Background

On January 25, 2012, Sean McLaughlin was repairing an HVAC unit on the roof of a Chuck E. Cheese’s restaurant at the Festival at Riva Shopping Center. While climbing an exterior wall to access the HVAC unit McLaughlin fell. He passed away twelve days later. On January 27, 2014, Plaintiffs Moreen Elizabeth Gilroy and McLaughlin’s other survivors filed suit in the U. S. District Court for the District of Maryland against Defendants SVF Riva Annapolis, LLC, the owner of the shopping center; Rappaport Management Corporation, the center’s property management company; and CEC Entertainment, Inc., the tenant and operator of the restaurant. The District Court dismissed the suit without prejudice for lack of subject matter jurisdiction. On May 12, 2015, Plaintiffs filed a wrongful death action in the Circuit Court for Anne Arundel County alleging negligence and premises liability.

Defendants SVF Riva and Rappaport filed motions for summary judgment. Among other points, the motions argued that Maryland’s statute of repose and Maryland’s statute of limitations for wrongful death cases barred the Plaintiffs’ claims. In general, Maryland’s statute of repose excludes the filing of lawsuits against certain classes of individuals and/or entities after the expiration of a set term of years. The trial court found that the exception contained in § 5-108(d)(2)(i) of Maryland’s Statute of Repose, which provides an exception to the operation of the statute for defendants who were “in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred,” applied only to asbestos-related cases. As a result, the Trial Court dismissed the action.

Holding

The Court of Special Appeals considered the sole question whether the exceptions to Maryland’s statute of repose apply beyond asbestos-related cases. It explained that § 5-108(d)(2)(i) makes no mention of asbestos and that the other three exceptions to the statute which reference asbestos are to be treated separately and independent from section (i). Accordingly, the Court concluded that because Plaintiffs’ pleadings provided a basis for one or all of the Defendants to fall within that exception, the judgment of the Circuit Court was reversed and the case was remanded to consider which of the Defendants fell within the exception.

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

NEW JERSEY CASE SUMMARIES

The Palisades at Fort Lee Condo. Ass’n v. 100 Old Palisade, LLC

New Jersey Supreme Court
2017 WL 4051812, — A.3d —
Decided: September 14, 2017

New Jersey Supreme Court weighs in on proper application of the statute of limitations in construction defect actions.

Background

Plaintiff, a condominium association, asserted construction defect claims against the contractors responsible for construction of the association’s high-rise building in Fort Lee, New Jersey. The issue that brought the matter before the Supreme Court was whether Plaintiff filed the lawsuit before the expiration of the statute of limitations. The construction of the building at issue was substantially complete in 2002. The building operated as a rental complex for two years. In 2004, the building was sold to a company that converted the rental apartments into condominiums. In connection with this process the conversion company retained an expert to inspect the property. The expert issued a report in 2004 stating: “Generally, the structure of the building . . . appeared to be in good condition.” Eventually, once 75 percent of the condominium units were sold, the conversion company relinquished control of the building to the Plaintiff condominium association. This turnover in control occurred in 2006. The Plaintiff then retained another expert to inspect the building. This expert issued a report in 2007 detailing construction-related defects, which served as the basis for Plaintiff’s lawsuit. Plaintiff’s complaints against the Defendants were filed beginning in 2009. Defendants were granted summary judgment by the Trial Court because Plaintiff’s complaint was filed more than six years after the date of substantial completion of the original construction. The Appellate Division reversed based the discovery rule, which tolled the start of the limitations period until the date of the expert report issued after the Plaintiff gained control of the building.

Holding

The N.J. Supreme Court rejected both the Appellate Division’s and Trial Court’s applications of the statute of limitations and stated that the issue could not be resolved without a Lopez hearing, Lopez v. Swyer, 62 N.J. 267, 273-74 (1973). The Court ruled that a construction-defect cause of action accrues at the time that the building’s original or subsequent owners first knew or, through the exercise of reasonable diligence, should have known of the basis for a claim. Accordingly, a subsequent owner can stand in no better position than a prior owner in calculating the limitations period. The Court explained that accrual of the limitations period begins only once someone in the chain of ownership first knows or reasonably should know of an actionable claim against an identifiable party. The Court was unable to determine when the accrual clock commenced based on the record before it and therefore remanded the case to the Trial Court. Importantly, the Court noted that Plaintiff will bear the burden of proving that the claim accrued at a time after the project’s substantial completion.

Questions about this case can be directed to Daniel Seger, at (908) 574-0513 or dseger@tthlaw.com.

Losada v. Princeton Univ.

New Jersey Superior Court, Appellate Division
No. A-3606-15T4
Decided: August 24, 2017

Superior Court holds the New Jersey Charitable Immunity Act bars negligence claims against Princeton University for a slip and fall on the University’s premises.

Background

Plaintiff, Sabrina Losada, appealed the Trial Court’s entry of summary judgment in favor of Princeton University on the basis that the University was immune from liability pursuant to New Jersey’s Charitable Immunity Act.

The claim arose when Losada slipped, fell, and sustained injuries, while attending her daughter’s swim meet, held at Princeton University’s DeNunzio pool, hosted by the Princeton Tigers Aquatic Club. The Club, a youth swim team, is not affiliated with Princeton University other than renting the pool facility to hold swim meets.

Holding

The Superior Court held that the Trial Court properly awarded summary judgment in favor of Princeton University because the University was entitled to immunity from liability under the Charitable Immunity Act. The Court noted Princeton University’s rental of the indoor pool to the Princeton Tigers Aquatic Club was in furtherance of Princeton University’s educational purposes as contemplated by the Act. The Court also noted that Losada was a beneficiary of Princeton University’s educational purposes under the Act by attending the swim meet, an educational endeavor on Princeton University’s premises. It was of no consequence that the Princeton Tigers Aquatic Club operated the swim meet on the premises.

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

Herring v. Kettleman’s Bagels Deli & Grill

New Jersey Superior Court, Appellate Division
No. A-2465-15T1
Decided: August 17, 2017

If an expert fails to give the why and wherefore of his or her opinion, it is nothing more than an inadmissible net opinion.

Background

Plaintiff Patti Herring filed an action for personal injuries allegedly sustained from a fall at Defendant Kettleman’s Bagels Deli and Grill. Plaintiff was meeting her family at Kettlemen’s for lunch. She walked into the deli and when she did not see her family, she went back out the front door. When her family arrived, Plaintiff reentered the store and tripped on an upturned corner of a floor mat just inside the entrance and fell. Surveillance video of the store showed another customer had dislodged the corner of the mat seconds before Plaintiff came through the door the second time. Defendant Kettleman’s had contracted with Defendant Cintas to provide several mats for the store’s entrance and counter areas. Cintas delivered and placed the mats at the store. Plaintiff retained an engineering expert who opined that the only reason the mat’s corner flipped and created an entrapment hazard was due to the mat being too short. Both Defendants moved for summary judgment for numerous reasons including lack of notice, and Plaintiff’s expert failure to support his opinion. The Trial Court granted the motions finding that Plaintiff’s expert lacked data to support his opinion rendering it an inadmissible net opinion.

Holding

In affirming the Trial Court, the Superior Court explained that the issue in the case was not whether it was reasonably foreseeable that a corner of a mat might be uplifted by someone’s foot in a busy store; it was whether the placement of this size mat in the particular location created a foreseeable risk of injury. The determination of that issue required expert testimony because an average juror was not equipped to determine whether the mat delivered by Defendant Cintas and placed in Kettleman’s was the proper mat for the particular location. Plaintiff needed to establish the “requisite standard of care and [Defendants’] deviation from the standard” through reliable expert testimony. Plaintiff’s expert opinion that a larger mat was required was not supported by any statute, regulation, industry standard or code and some of the standards cited were not accepted authority in New Jersey. The Superior Court reiterated that an expert is required to “give the why and wherefore of his or her opinion, rather than a mere conclusion.”

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

Landers v. Medford Fitness Ctr.

New Jersey Superior Court, Appellate Division
No. A-2853-15T2
Decided: August 17, 2017

Mode-of-operation doctrine inapplicable where the loss location bears the slightest relationship to any self-service component of a defendant’s business.

Background

Plaintiff Landers filed a negligence action for injuries from a slip and fall at a Zumba class in a gym operated by Defendant Medford Fitness Center. One week prior, Defendant had the group exercise studio floor waxed and re-coated. The Zumba class was the first time Plaintiff had been in the studio since the floors were redone. About 15 minutes into the class, Plaintiff noticed drops of water on the floor, stopped dancing and wiped the floor with a paper towel. Plaintiff did not know the source of the water. While Plaintiff did not notify the Zumba instructor who led the class from the front of the room, she moved a few feet to the left to continue dancing. About 20 minutes later, Plaintiff slipped and fell while performing a dance routine.

Later, Plaintiff claimed the moisture or dampness, as oppose to a puddle or water drops, caused her fall. Plaintiff could not identify the source of the moisture and did not see anyone spill water or sweat profusely. Plaintiff admits that the floor did not feel any different than before it was re-coated. A witness testified the floor was extremely slippery that day and the combination of the humidity in the room and the waxed floor caused the condition. Defendant’s general manager and co-owner testified that she inspected the studio after the Plaintiff’s fall and did not notice any substances or moisture on the floor nor was she aware of any other slip/fall incidents for the month of January.

Defendants moved for summary judgment arguing Plaintiff failed to prove actual or constructive notice and her inability to identify the source or moisture which caused her to fall. The Trial Court granted the motion finding Plaintiff failed to establish that Defendant’s negligence caused her injuries.

Holding

In affirming the decision, the Superior Court explained that the “mode-of-operation” doctrine addresses “circumstances in which, as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business, the property’s condition, or a demonstrative pattern of conduct or incidents”. The dangerous condition may arise from customer negligence, employees’ actions, or the inherent quality of the merchandise itself. The mode-of-operation doctrine has never been expanded beyond the self-service setting, in which customers independently handle merchandise without the assistance of employees or may come into direct contact with product displays, shelving, packaging, and other aspects of the facility that may present a risk. The Trial Court properly rejected Plaintiff’s reliance on the doctrine as the record failed to establish a nexus between the dangerous condition and the gym’s mode-of-operation: Plaintiff was not using merchandise or equipment and she was in the presence of an instructor.

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

VIRGINIA CASE SUMMARY

Erie Ins. Co. v. McKinley Chiropractic Ctr.

Virginia Supreme Court
2017 WL 4051567, –S.E.2d–
Decided: September 14, 2017

Health care provider, as assignee of patient involved in car accident, could not recover against insurance company because the patient never obtained a judgment against the insured driver.

Background

Patient Dodson was involved in a car accident with a driver insured by Erie Insurance Company and sought chiropractic care from McKinley Chiropractic Center, P.C. Dodson executed a document assigning to McKinley all insurance and/or litigation proceeds to which he was or may be entitled and any and all causes of action that might exist to satisfy any debts Dodson owed McKinley. McKinley faxed Erie a copy of the assignment shortly after Dodson began treatment. Thereafter, Dodson accepted $7,300 from Erie and signed a release, releasing both Erie and its insured from any and all causes of action.

McKinley filed a Warrant in Debt against Erie in the General District Court and obtained a judgment for the chiropractic services provided to Dodson. On appeal from the General District Court, the Circuit Court held that McKinley was entitled to judgment against Erie because Erie had notice of the assignment but failed to honor it by paying Dodson directly. Erie appealed the judgment of the Circuit Court arguing, as a matter of law that McKinley did not have the right to sue Erie.

Holding

Va. Code § 8.01-13 permits the assignee of any bond, note, or writing to maintain in his own name any action which the original obligee might have brought. An injured party has no right to recover tort damages from the tortfeasor’s insurer until reducing his claim against the tortfeasor to a judgment. Dodson did not obtain a judgment against Erie’s insured and, therefore, had no right to proceed against Erie. Moreover, Dodson relinquished all existing and future rights to recover tort damages from Erie, or its insured, by releasing them from all claims arising from the subject accident. Therefore, as Dodson could not have maintained an action against Erie in his own name, McKinley, as assignee, had no right to bring such an action.

Questions about this case can be directed to Lacey Conn, at (202) 945-9502 or lconn@tthlaw.com.