TT&H eNotes: Liability – September 2018

TT&H LAWYERS IN COURT

Attorney Candace Edgar wins jury trial in negligence action involving sandbag in parking lot of amusement park.

TT&H Attorney Candace Edgar won a defense verdict for a well-known amusement park following a two-day jury trial. Plaintiff, a 60-year-old patron visiting the amusement park from New York, claimed that he tripped and fell over a sandbag allegedly left by one of the park’s employees on the sidewalk at a tram stop. As a result of the fall, Plaintiff asserted a closed head injury and cerebral concussion. At trial, the jury heard conflicting testimony about who placed the sandbag on the sidewalk and the role, if any, it played in Plaintiff’s fall. Following a brief deliberation, the jury found no negligence on the part of the amusement park or its employees.

Questions about this case can be directed to Candace Edgar, at (717) 237-7103 or cedgar@tthlaw.com.

TT&H Attorney Ben Peoples prevails in appeal of $800,000 insurance coverage case before the U. S. Court of Appeals for the D. C. Circuit.

On July 31, 2018, the Court of Appeals for the District of Columbia Circuit affirmed a judgment entered in favor of an insurer represented by Ben Peoples in an insurance coverage case. The action was brought by a couple who owned a beach home in Rehoboth Beach, Delaware. The couple failed to shut off the water supply, maintain heat, or drain the plumbing system of water while away from the home. While the home was unoccupied, a water pipe burst, and flooded the home.

The homeowners’ insurer denied the claim based on a manuscript exclusionary endorsement in the insurance contract. The homeowners filed suit against the insurer for breach of contract. Finding that they could not recover under the clear and unambiguous terms of the insurance contract, the District Court granted summary judgment to the insurer. The appellate court for the D.C. Circuit affirmed, adopting Attorney Peoples’ argument that the clear and unambiguous language of the insurance contract, which required the insured to shut off the water supply where it entered the house and either maintain heat or drain the system of water when the property is vacant and unoccupied for more than 72 hours, excluded the loss because the Plaintiffs were away from the home for more than 72 hours, and failed to maintain heat, turn off the water supply, and/or drain the system.

Questions about this case can be directed to Ben Peoples, at (202) 945-9501 or cpeoples@tthlaw.com.

TT&H Attorney Joshua Bovender wins arbitration in negligence action for partial amputation of hand.

Attorney Joshua Bovender secures a defense arbitration award in Dauphin County. Plaintiff asserted that Defendant snow removal contractor negligently failed to remove snow and ice from a gravel parking lot where Plaintiff fell. Plaintiff’s hand was partially amputated when it was caught in a closing car door during the fall. Attorney Bovender successfully argued that the contractor did not breach the standard of care. The arbitration panel agreed and found no liability on the part of the contractor, despite entering an award against the co-defendant property owner.

Questions about this case can be directed to Joshua Bovender, at (717) 237-7153 or jbovender@tthlaw.com.

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SIGNIFICANT CASE SUMMARIES

PENNSYLVANIA CASE SUMMARIES

Rubes v. Kohl’s Dep’t Stores, Inc.

• United States District Court for the Middle District of Pennsylvania
• No. 3:17-cv-1842
• Decided: June 29, 2018

Summary judgment granted for department store in slip and fall action where Plaintiff failed to prove cause.

Background

Plaintiff Rubes slipped and fell after entering a Kohl’s store, resulting in alleged permanent injury. Although the weather conditions consisted of a mix of snow and rain, and the parties agreed that wet floor signs were present at the entrance, Plaintiff was unable to identify the cause of her fall.

Holding

The Court reiterated that the “mere occurrence of an accident does not establish negligent conduct” and granted Kohl’s motion for summary judgment. Plaintiff was the only witness to her fall, she presented no evidence of any puddles or water on the floor, and admitted that she did not see any water on the ground. In the absence of any supporting facts, the Court rejected Plaintiff’s argument that the presence of a wet floor sign was, by itself, enough to show that the floor was wet.

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

Rudolph v. Safari Club Int’l.

• United States District Court for the Western District of Pennsylvania
• No. 2:12-CV-01710-CRE (W.D. Pa.), 2018 U.S. Dist. LEXIS 107404
• Decided: June 27, 2018

Summary judgment denied as to defamation claim against limited purpose public figure, but granted as to defamation by innuendo.

Background

Plaintiff sued Defendant Safari Club Int’l. in two counts, defamation and defamation by innuendo, arising out of Defendant’s investigation into certain alleged misconduct by Plaintiff, in relation to Defendant’s officers and personnel, Plaintiff’s hunting record book entries, and other alleged inappropriate personal conduct. A Petition was initiated against Plaintiff and, after investigation, Defendant’s Board of Inquiry found sufficient evidence that Plaintiff had engaged in a pattern of misconduct. Plaintiff alleged that the circulation of the Petition and the reading of the investigation findings to Board members constituted defamation.

Defendant ultimately expelled Plaintiff as a member, terminated his spokesperson agreement, removed Plaintiff’s records from the Defendant’s Record Book and rescinded Plaintiff’s hunting awards. A letter was sent to Plaintiff informing him of this action. Plaintiff alleges that this letter constituted defamation by innuendo.

Holding

Defendant argued that Plaintiff was a limited purpose public figure, which would require Plaintiff to prove that the defamatory statements were made with “actual malice.” The Court found that there was no evidence that Plaintiff’s alleged conduct in his private life and exercising his duties in various roles for Defendant ever became a public controversy. Accordingly, Plaintiff is not a limited purpose public figure with regard to the allegedly defamatory statements, and the Court denied Defendant’s motion for summary judgment on the defamation count.

The Court granted summary judgment on the claim of defamation by innuendo, stating that the letter simply informed Plaintiff that he was being removed from hunting awards and the record book. The letter did not accuse Plaintiff of any misconduct, or accuse Plaintiff of being dishonest.

Practice Tip: Establishing a limited purpose public figure is a fact intensive burden.

Questions about this case can be directed to Francis DiSalle, at (412) 434-8596 or fdisalle@tthlaw.com.

Slappy-Sutton v. Speedway LLC

• United States District Court for the Eastern District of Pennsylvania
• No. 16-4765
• Decided: June 25, 2018

Walkway curb is not a dangerous condition subjecting landowner to liability.

Background

After buying gas at Speedway, Plaintiff Slappy-Sutton, entered the Speedway convenience store to purchase additional items. As he exited the store, he misjudged the step down from the curb to the parking lot area and fell. Several years prior, Speedway had upgraded the fuel tank systems. To do so, it had to excavate a one foot wide trench in the asphalt parking lot, which was adjacent to and ran parallel with the curb in front of the store entrance. When the trench was filled and repaired, it was repaired using concrete, not asphalt. As a result, the curb and the one foot area extending from the curb were both concrete and the same color. Plaintiff claimed that this condition was dangerous because there was no color differentiation to warn of the change in elevation from the curb to the parking lot area. In support Plaintiff presented a report from an expert citing general building codes.

Defendant filed a Motion for summary judgment arguing that the curb did not constitute a dangerous condition, and that if it did, it was open and obvious such that Plaintiff should have been able to avoid it with reasonable care. Defendant, in a separate motion, also sought to preclude the testimony of Plaintiff’s expert.

Holding

The District Court determined that the curb is one an invitee “should normally expect to encounter” and, thus, not a dangerous condition. In doing so, it dismissed the expert’s conclusory opinion that the curb was dangerous. The Court found that the “opinion” was based on “a generic provision” of International Building Code, followed by the municipality where the Speedway was located, which did not provide any specific requirement that a curb and the pavement below be of differing colors. An opinion that relies on such a generic provision does not create an issue of material fact to defeat a proper Motion for summary judgment. The Court further went on to decide that the condition of the curb was also an open and obvious condition. The Court reinforced that it is hornbook law in Pennsylvania that “a person must look where he is going.” As Plaintiff conceded that lighting conditions were adequate and that he could “pretty much see [his] way” at the time, the Court concluded that the curb represented an open and obvious condition. The Court granted summary judgment to Speedway on both theories.

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

Carletti v. DOT

• Pennsylvania Commonwealth Court
• No. 1312 C.D. 2017
• Decided: July 17, 2018

Commonwealth Court orders new trial where Trial Court failed to properly instruct jury that expert opinion on causation cannot be based on inadmissible hearsay.

Background

Plaintiff Carletti sustained injuries, while traveling on State Route 320, when he fell off of his bicycle. Although the Plaintiff sustained head injuries in the accident and could not testify as to the cause of the same, he claimed that the incident occurred after he hit a bump on the roadway. The Plaintiff sued PennDOT, alleging negligence in the design and maintenance of the accident portion of the roadway, as well as a failure to warn of the hazardous condition, and a failure to remedy the hazardous condition after receiving notice. Mr. Kauffman, an eyewitness to the accident, testified at deposition that he saw the Plaintiff go over the handlebars of his bicycle. Mr. Kauffman could not specifically attribute the incident to the bump in the roadway (at least not at his deposition), but did testify as to the mechanics and location of the incident.

At trial, Plaintiff’s witnesses included an accident reconstructionist expert, Mr. Gyorke, who opined that the bump in the roadway caused the Plaintiff’s incident. The expert relied in part upon Mr. Kauffman’s deposition testimony in forming this opinion. Mr. Kauffman, however, was not called to testify to testify as a witness, and his deposition testimony was not offered into evidence.

Holding

Following a verdict in favor of the Plaintiff, PennDot took an appeal seeking, among other things, a new trial. In requesting a new trial, PennDot argued that the Trial Court failed to properly instruct the jury with respect to its consideration of Gyorke’s expert testimony and, more specifically, Gyorke’s use of Kauffman’s deposition testimony in forming his opinions as to causation. The Commonwealth Court agreed, reversing and remanding the matter for a new trial. It found that the Trial Court erred in instructing the jury “because it did not inform the jury that, since Mr. Kauffman did not testify, Gyorke’s opinion as to causation could not be based on Mr. Kauffman’s deposition testimony because that testimony was impermissible hearsay.”

Questions about this case can be directed to Jillian Denicola, at (570) 820-0240 or jdenicola@tthlaw.com.

MARYLAND CASE SUMMARIES

Kennedy Krieger Inst., Inc. v. Partlow

• Maryland Court of Appeals
• September Term, 2017, No. 82
• Decided: August 13, 2018

Seven classic factors are to be weighed in determining whether a duty exists under common law: foreseeability of harm, degree of certainty that plaintiff suffered injury, closeness of connection between defendant’s conduct and injury suffered, moral blame attached to defendant’s conduct, policy preventing future harm, extent of burden to defendant and consequences to community of imposing duty, and availability, cost, and prevalence of insurance for risk involved.

Background

Plaintiff Kennedy Krieger Institute (KKI) conducted a “Lead-Based Paint Abatement and Repair and Maintenance Study” at an occupied Baltimore City apartment building. KKI did not own or manage the building. The study investigated the effectiveness of various levels of repair and maintenance interventions designed to reduce exposure to lead in houses and to reduce children’s blood-lead levels. Ashley Partlow was a minor who resided in the building where KKI conducted the study. Her sister was a participant in the study by consent. A Complaint was filed on Ashley Partlow’s behalf in the Circuit Court for Baltimore City against KKI alleging negligence and violations of the Baltimore City Housing Code and the Maryland Consumer Protection Act due to alleged injuries she sustained from lead-based paint exposure from the building. The Circuit Court granted summary judgment in favor of KKI, ruling that KKI did not owe Ashley Partlow a duty of care.

The Court of Special Appeals reversed the Circuit Court’s grant of summary judgment, concluding that a “special relationship “existed between KKI and participants and non-participants of the KKI study alike, and that from said special relationship a duty of care arose. KKI filed a petition for a writ of certiorari, which was granted, raising the sole issue “whether the Court of Special Appeals . . . erred in imposing a duty on KKI to an individual who was not enrolled in the research study at issue.”

Holding

The Court of Appeals held that a common law duty of care extended from KKI to Ashley Partlow because KKI knew that she resided at the property that it used to study lead-based paint abatement measures. The Court weighed seven factors in reaching its decision: the foreseeability of harm to plaintiff, degree of certainty that plaintiff suffered injury, closeness of connection between defendant’s conduct and injury suffered, moral blame attached to defendant’s conduct, policy preventing future harm, extent of burden to defendant and consequences to community of imposing duty, and availability, cost, and prevalence of insurance for risk involved. The Court determined that the factors weighed heavily in Ms. Partlow’s favor.

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

Sugarman v. Liles

• Maryland Court of Appeals
• No. 80, September Term 2017
• Decided: July 31, 2018

In lead paint cases, experts can use elevated blood lead levels, neuropsychological evaluations and studies to opine about a loss of IQ points, even when no IQ point loss is documented. Vocational experts are not required to include parental achievement in a reduced earning capacity analysis.

Background

Chauncey Liles, Jr. sued his former landlords alleging harm caused by lead paint exposure. Plaintiff’s causation expert testified that Mr. Liles’ early exposure to lead caused him to have attention deficit problems and to lose 4 IQ points, although a loss in IQ points was not documented. The expert did not examine the Plaintiff, but instead relied on the EPA’s Integrated Science Assessment of Lead (EPA-ISA) which found causal relationships between lead exposure and attention problems in children and a leading study by Dr. Bruce Lanphear to determine an IQ point loss.

Defendants moved for judgment arguing that Plaintiff failed to prove that his elevated blood levels caused any injury and that he had not proven the existence of any damages beyond mere speculation because his vocational expert’s did not include the parents’ educational and work histories. They argued that the causation expert’s testimony was based solely on epidemiological literature with no measure of Mr. Liles to support the opinion that he experienced cognitive loss caused by lead exposure and that the expert’s analysis failed to bridge the gap between her opinion and the empirical studies. The Trial Court denied the motion for judgment and the jury awarded monetary damages. The Court of Special Appeals firmed the Lower Court’s ruling.

Holding

The Court of Appeals affirmed the Lower Courts’ rulings. It found that the Plaintiff’s causation expert relied on Mr. Liles’ documented lead levels, the results of examinations performed by other doctors, and other studies, to estimate an IQ loss. The individual evaluations along with Mr. Liles’ manifested cognitive defects gave her enough reason to use her knowledge and expertise to extrapolate a loss of IQ. Therefore, her analysis did not suffer from an “analytical gap.” With regard to damages, the Court ruled that Maryland does not require that a vocational expert consider parental achievement when offering an opinion on a plaintiff’s pre-injury outcome.

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

NEW JERSEY CASE SUMMARY

Kolos v. Tikal, LLC

• New Jersey Superior Court, Appellate Division
• No. A-0076-17T2
• Decided: August 10, 2018

Superior Court affirms Trial Court’s grant of summary judgment on the basis that snow removal contractors had no duty to clear snow and ice from premises on date of fall.

Background

Plaintiff Kolos slipped and fell on black ice at his employer’s parking lot. Defendants Tikal and NG Landscaping performed snow removal for Kolos’s employer, Entenmann’s, on the premises pursuant to an unwritten agreement. During discovery, it was established there was no proven obligation on the part of Defendants to perform snow or ice removal at the property on the date Kolos fell. The responsibility to provide snow and ice removal services at the Entenmann’s parking lot was triggered whenever there was a snowfall of two inchers or greater. There was no agreement by either Defendant to perform an inspection of the property for thaw and refreeze conditions. Defendants had no obligation to service the property after the February 4, 2014 snowfall, two days prior to the fall, as there was no additional snowfall over two inches during that interval. Defendants summary judgment motion was granted.

Holding

The Appellate Court affirmed, finding that Kolos proffered no competent evidence of any duty to inspect for or clear the re-freeze condition. Kolos merely put forth speculation, as opposed to evidence, to dispute the proof that the Defendants’ agreement with Entenmann’s was limited to snow removal for snow falls of two inches or greater. Nor did Kolos retain any expert to testify that the snow removal work performed on February 4, 2014 was negligently performed.

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

DC CASE SUMMARY

Blair v. Dist. of Columbia and Modlin

• District of Columbia Court of Appeals
• Nos. 16-CV-1211 & 16-CV-1212
• Decided: August 2, 2018

District of Columbia’s vicarious liability for off-duty officer’s assault and battery is a jury question.

Background

Plaintiff, Walter Blair, II, sustained serious injuries, including the loss of his right eye, in a fight outside of the Lotus Lounge nightclub in Washington, D.C., in the early morning hours of June 10, 2011. Plaintiff alleged that he had been a patron of the Lotus Lounge nightclub and left around closing time, at which time he became involved in an altercation that included several bouncers of the nightclub, as well as off-duty police officers with the Metropolitan Police Department. Defendant Thaddeus Modlin was one of the police officers. Plaintiff initially filed suit against the District of Columbia and the nightclub (Blair I) and alleged the District was vicariously liable for negligence and assault and battery of its officers and for negligent hiring, training, and supervision of its officers. Blair I was dismissed against the District and the Court of Appeals reversed and remanded the case to reinstate all counts against the District.

Plaintiff filed a second lawsuit naming Modlin directly (Blair II), in which he sued Modlin for negligence and gross negligence arising from his role in the melee, claiming that Modlin kicked Plaintiff several times in the head. The Trial Court in Blair I entered summary judgment in the District of Columbia’s favor on Plaintiff’s negligent hiring, training, and supervision claims, because Plaintiff’s experts did not establish the national standard of care, and on Plaintiff’s claims of vicarious liability for assault and battery. The Trial Court also granted Modlin’s Motion for Summary Judgment in Blair II and found that Modlin was entitled to immunity from negligence liability under the “public duty” doctrine. The Trial Court also held, sua sponte, that Plaintiff’s claims against Modlin were time-barred by the one year statute of limitations for intentional torts despite being cast as negligence claims. Plaintiff appealed each of these rulings.

Holding

The D.C. Court of Appeals affirmed summary judgment for Modlin and found that Plaintiff’s claims were time-barred and that he failed to plead a separate, legally cognizable claim of negligence against Modlin despite an attempt at “dressing up the substance” of an assault claim in the “garments” of a negligence claim to take advantage of the District’s three-year statute of limitations for negligence claims. The Court also affirmed summary judgment for the District on Plaintiff’s claims for negligent hiring, training, and supervision of Modlin because Plaintiff’s experts did not establish a national standard of care. The Court reversed the Trial Court’s grant of summary judgment on Plaintiff’s claim for assault and battery-based respondeat superior and remanded for further proceedings, holding that a jury could reasonably find Modlin’s actions were at least partially motivated by his desire to serve the District as a police officer.

Questions about this case can be directed to Peter Biberstein, at (202) 945-9506 or pbiberstein@tthlaw.com.

VIRGINIA CASE SUMMARY

Thomas v. Omni Hotels Mgmt. Corp.

• United States Court of Appeals for the Fourth Circuit
• No. 17-1424 (Unpublished)
• Decided: August 2, 2018

Plaintiffs must demonstrate actual or constructive knowledge of slip hazard in order to survive summary judgment.

Background

Plaintiff, a guest at Defendant’s hotel, walked through the partially enclosed walkway between the hotel and adjacent spa building with her husband. While walking they noticed that a fountain in the center of the walkway had icicles hanging from the fountain. Her husband also noticed a sign showing the temperature was 22 degrees Fahrenheit. As the two returned from the spa building to the hotel and passed the fountain again, the guest slipped and fell, injuring her wrist and hand, and broke a rib. The guest filed a suit against the hotel for negligent inspection and maintenance of the area around the fountain.

The hotel’s motion for summary judgment was granted.

Holding

The Court affirmed the dismissal. Virginia innkeepers, despite their special duty of care requiring “the utmost care and diligence” and which creates liability “for the slightest negligence which human care, skill, and foresight could have foreseen and guarded against” are not strictly liable for injuries to their guests on the premises. The record revealed that the hotel had no prior reports that water had escaped from the fountain. Furthermore, though the presence of ice suggested that water had been present on walkway floor for some period of time, the guest failed to demonstrate constructive notice of the condition. Given the record, the Court held that it was just as reasonable to assume that the ice had frozen the moment before the guest stepped on it and fell. The guest’s case rested on unproven inferences and impermissible jury speculations.

Questions about this case can be directed to Collin Shannon, at (202) 945-9504 or cshannon@tthlaw.com.