C&F Obtains Summary Judgement in Slip and Fall Action

In a recent decision, C&F obtained summary judgment in the New Jersey Superior Court, Bergen County, in a slip and fall action, in which we represented the defendant, snowplow contractor. In the Complaint, plaintiff alleged that she was caused to slip on ice that accumulated in the parking lot of the subject premises and that the defendants negligently failed to maintain the premises in a safe manner. The premises were owned and managed by the co-defendants, who filed a motion for summary judgment. In response, we filed a cross-motion for summary judgment.

Pursuant to the contract with the property owner, the insured was responsible for providing snow plowing, shoveling, and calcium application services for the parking lot of the subject premises.  The contract, though, explicitly disclaimed responsibility for any slippery conditions caused by a melt and/or refreeze. Additional services, such as an ice watch or further salt applications after a storm, were not contemplated by the snow plowing contract. The contract specifically stated that the insured is not responsible for conditions caused by melt and refreeze occurrences.

In New Jersey, a landowner has a non-delegable duty to exercise reasonable care for an invitee's safety.  De Los Santos v. Saddlehill, Inc., 211 N.J. Super. 253, 261 (App. Div. 1986), including making reasonable inspections of its property and taking such steps as are necessary to correct or to give warning of hazardous conditions or defects which are actually known to the landowner.  The landowner is also liable to an invitee for failing to correct or warn of defects that, by the exercise of reasonable care, could or should have been discovered.  Monaco v. Hartz Mountain Corporation, 178 N.J. 401, 414-15 (2004).

Moreover, in instances where a commercial property owner has contracted another entity to perform snow removal activities, the snow removal company has a duty to perform said snow removal “in a careful and prudent manner.” Gonzalez v. Eastern Freightways, 2010 N.J. Super. Unpub. LEXIS 2338 (App.Div. Sept. 23, 2010).  The duties of the snow removal contractor are, however, defined by the terms of the contract.  Aronsohn v. Mandara, 98 N.J. 92, 105-06, 484 A.2d 675 (1984), (holding that the snow contractor’s duty extended only so far as permitted by the contract).

In our cross-motion for summary judgment, we argued that there was no duty owed to the plaintiff because there was no evidence that the insured was called by co-defendants to provide any additional snow management services outside of those contemplated by the snow plowing contract at or around the time of the subject accident. Furthermore, we argued that plaintiff testified that there was no precipitation on the date of the subject accident, and that she did not see any snow in the parking lot, prior to the time of the accident. Accordingly, in the absence of any storm to trigger the insured’s contractual snow management obligations or any evidence suggesting that it was contacted to provide any snow management services outside of the scope of the snow plowing contract, our insured did not owe any duty of care to plaintiff.

During oral argument, the Court agreed with our position and granted our cross-motion for summary judgment.

Personal Injury Complaint for Discovery Survives Death in Massachusetts

Recently, in Atchue v. Benchmark Senior Living LLC, 98 Mass. App. Ct. 572 (2020), the Appellate Court considered whether the Survival Statute M.G.L.c. 228 § 1(2)(a), encompasses a complaint for discovery involving personal injuries sustained by a deceased plaintiff.

On December 19, 2015, Mary T. Atchue sustained a broken foot and contusions while under the care of an assisted living facility known as Tatnuck Park in Worcester, Massachusetts. Mrs. Atchue’s family repeatedly requested records and reports concerning the incident, however, Tatnuck Park failed to produce the requested records. Subsequently, Mrs. Atchue’s attorney served a complaint for discovery and a M.G.L.c. 93A demand letter which alleged Tatnuck Park or its agents negligently failed to abide their own care plan, which required Mrs. Atchue to be transported using a gait belt. Tatnuck Park denied any liability and alleged the plaintiff’s legs “gave out” and she fell to the ground. Additionally, they denied their care plan required gait belts when they transported Mrs. Atchue. In the complaint for discovery, Mrs. Atchue stated “she ‘believes that she has a viable claim for negligence against [the defendants …] but that she requires the information contained in the incident report […] to assess the viability of her claim.’” At the time of the incident, Mrs. Atchue was elderly and displayed cognitive deficiencies which lead to inferences she may not have been able to identify the individuals involved or specific negligent acts that caused her injuries. In June of 2018, Mrs. Atchue’s complaint for discovery was filed with the trial court and subsequently dismissed. In December of 2018 she filed an appeal. Following the appeal, Mrs. Atchue passed away. The Appellate Court, however, took the matter under review.

On appeal, the defendants argued the matter was moot because Mrs. Atchue had passed away. The Court noted, “litigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome and where the court cannot order any further effective relief.” At common law, tort actions did not survive a party’s death, however, the Legislature enacted the Survival Statute M.G.L.c. 228 § 1(2)(a) to include tort actions to common law contract claims. M.G.L.c. 228 § 1(2)(a) provides, “[i]n addition to the actions which survive by the common law, the following shall survive: (2) Actions of tort (a) for assault, battery, imprisonment or other damage to the person.” The defendant’s countered by suggesting the plaintiff’s complaint for discovery is neither a contract nor a tort claim to survive death under M.G.L.c. 228 § 1(2)(a). The Court disagreed stating, “the defendants' argument overlooks the fact that a complaint for discovery is an equitable remedy in aid of an action at law. We discern no reason why, where the administrator of an estate has the ability to pursue an action at law on behalf of a decedent, the administrator of the estate would not have the same ability as the decedent to obtain prelawsuit discovery through a complaint for discovery.” Further, the Court looked to the plain language of M.G.L.c. 228 § 1(2)(a), specifically, “or other damage to the person” and held that this phrase was intended to incorporate other torts that involve damages. Ultimately, the Court found that “because Atchue's potential negligence claim survives her death, so too does her complaint for discovery.”

From a defense perspective, at common law, death no longer defeats a personal injury suit or even pre-suit inquiries of discovery, therefore compliance with such requests are required, unless there are independent grounds to object.

A Wet Surface does not Inherently Create a Dangerous Condition

The Second Judicial Department for the Supreme Court of the State of New York, Appellate Division, recently addressed the question of whether the landing to enter a building—in this instance a restaurant—can constitute a dangerous condition if a plaintiff slips and falls when it is raining at the time of the accident.  See Christopher Derosa v. Zaliv, LLC, ___ A.D.3d ___, 2020 N.Y. Slip. Op. 07862 (2d Dept. 2020).  Simply, if the only alleged cause for the fall presented by a plaintiff was a slippery condition upon the entrance to a building caused by falling precipitation, the existence of dangerous condition cannot be established. 

In Derosa, the plaintiff allegedly sustained personal injuries when he was lawfully upon the premises of a TGI Friday’s restaurant in Brooklyn, New York, operated by the defendants.  The subject accident occurred when the plaintiff slipped on the landing of an exterior staircase leading to the entrance of the restaurant, allegedly from the negligent ownership and maintenance of the staircase on the premises.

The defendants moved for Summary Judgment, arguing that the plaintiff failed to identify a dangerous condition upon the premises occupied by the defendants thereby causing his sustained injuries; however, the trial court denied the defendants’ Motions for Summary Judgment finding that questions of fact as to the dangerous condition remained.  Ultimately, the Second Judicial Department reversed the trial court’s order and granted the defendants’ Motions for Summary Judgement, dismissing plaintiff’s claims against the defendants.

The Second Judicial Department found that “the mere fact that an outdoor walkway or stairway becomes wet from precipitation is insufficient to establish the existence of a dangerous condition.”  The Court found that defendants properly established that the sole cause of plaintiff’s fall was the ongoing precipitation that made the subject staircase at the entrance wet.  Additionally, plaintiff admitted during his deposition that the rain, which was still falling at the time of his accident, caused the area where he fell to become wet; specifically, the rain caused the surface of the stairway to become wet, which led him to slip and sustain his injuries.  The Second Judicial Department also rejected plaintiff’s attempt to create an issue of fact through his engineering expert; the report failed to alter the cause of plaintiff’s fall—the rain—based upon the plaintiff’s candid deposition testimony.

From a defense perspective, Derosa teaches us that where weather may factor into a plaintiff’s injuries it is important to evaluate whether the weather is the sole cause of the alleged injury or just another contributing factor to the accident dynamic.  When it is the sole cause, given the holding in Derosa, it should be argued that a wet surface from rain does not create a dangerous condition in and of itself.  As the ongoing rain was neither created nor caused by the defendants in Derosa, a court cannot have reasonably deduced that a dangerous condition existed; simply put, a plaintiff who slips and falls from the rain alone has insufficient evidence to maintain a premises liability action.  Therefore, there is a strong likelihood of defendants, in similar matters, being successful with a Motion for Summary Judgment.

As 2021 Begins, Florida Shifts to Federal Summary Judgment Standard

Perhaps anxious to remember 2020 for some positive reason, the Florida Supreme Court closed out the year by issuing a New Year’s Eve decision that abandons Florida’s prior summary judgment standard and adopts the federal summary judgment standard established in the Celotex trilogy. The opinion, Wilsonart LLC v. Lopez, Case No. SC19-1336 (Fla. Dec. 31, 2020), was accompanied by a subsequently adopted proposed amendment to Florida Rule of Civil Procedure 1.510, adopted in In Re Amends to Fla. R. Civ. P. 1.510, No. SC20-1490 (Fla. Dec. 31, 2020) which dictates that Florida’s adoption of the federal standard shall take effect on May 1, 2021.

The Wilsonart decision emerges from catastrophic car accident litigation where a man, Jon Lopez, lost his life. Counsel for the defendant in the circuit court, Wilsonart, LLC, had presented video dash cam evidence that their truck driver was not negligent in causing the accident that tragically killed Lopez. The defendant moved for summary judgment based on that evidence. To combat the video, Lopez presented evidence from a witness that stated that contrary to the video, the truck driver had encroached his lane at the time of the accident and as such, was negligent. The trial court granted summary judgment, but the Fifth District Court of Appeals reversed, stating that Florida’s existing summary judgment standard compelled reversal because of the fact dispute over encroachment of lanes between video evidence and an eyewitness.

On review, the Florida Supreme Court invited all interested parties, including members of the Florida Defense Lawyers Association, to weigh in on the question of whether Florida should adopt the federal summary judgment standard. Under that standard, a party moving for summary judgment is not required to overcome the extraordinarily reaching burden of negating any prospective fact dispute over the non-movant’s claim. Amicus briefs noted this would not only speed up litigation cycles in court, but it would also lead to more good-faith settlement and ultimately less expensive settlement negotiations, because plaintiffs would now need to show at the summary judgment stage that they have sufficient evidence for a jury to find in their favor, rather than simply enough evidence for a jury to prospectively find in their favor.

The decision, meant to “improve the fairness of Florida’s civil justice system,” particularly to defendants, requires Florida courts to abandon their expansive understanding of what constitutes a genuine issue of material fact. Specifically, the prior state standard for a genuine issue of fact (“slightest doubt”) is being replaced with the federal standard (whether a “reasonable jury could return a verdict for the nonmoving party”). Id. at 4–5. As the court wrote, “metaphysical doubt” will not be enough to generate a genuine issue of material fact to avoid summary judgment. Id. at 4. The decision ultimately aligns Florida with 38 other states that have adopted the Celotex Standard. While the rule will be adopted in May, the Florida Supreme Court is accepting public comment on the new rule to be submitted by members of the Florida Bar. Those wishing to make public comment must file the same with the Court by March 2, 2021.

When Repair vs. Routine is Key to Successful Labor Law Defense

In an action to recover damages for personal injuries, the plaintiff filed an Appeal from an order of the Supreme Court, Kings County, which granted the defendants' motion for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6), denying plaintiff’s cross motion for summary judgment on the issue of liability, on the cause of action alleging a violation of Labor Law § 240(1) against the defendant Franklin Plaza Apartments, Inc.

Specifically, the plaintiff, an employee of a company contracted by the defendant Franklin Plaza Apartments, Inc., to maintain its boilers, was dispatched to prepare and test the boilers for an upcoming city inspection. During his work, he used an extension ladder to access the top of a boiler and was allegedly injured when the ladder fell to the ground.

The plaintiff commenced this action to recover damages for personal injuries, asserting, inter alia, causes of action alleging violations of Labor Law §§ 240(1) and 241(6). The defendants moved for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6).  The Supreme Court granted the defendants' motion and denied the plaintiff's cross motion. Accordingly, the plaintiff appealed the Supreme Court’s decision.

"'To prevail on a cause of action under Labor Law § 240(1), a plaintiff must establish, among other things, that he or she was injured during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure'" (Dahlia v S & K Distrib., LLC, 171 AD3d 1127, 1128, quoting Ferrigno v Jaghab, Jaghab & Jaghab, P.C., 152 AD3d 650, 652-653 [internal quotation marks omitted]). "'In determining whether a particular activity constitutes "repairing," courts are careful to distinguish between repairs and routine maintenance, the latter falling outside the scope of section 240(1)'" (Dahlia v S & K Distrib., LLC, 171 AD3d at 1128, quoting Ferrigno v Jaghab, Jaghab & Jaghab, P.C., 152 AD3d at 653). Similarly, "'[r]outine maintenance is not within the ambit of Labor Law § 241(6)'" (Byrnes v Nursing Sisters of the Sick Poor, Inc., 170 AD3d 796, 797, quoting Garcia-Rosales v Bais Rochel Resort, 100 AD3d 687, 688; see Dixson v Waterways at Bay Pointe Home Owners Assn, Inc., 112 AD3d 884, 885).

Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) by establishing that the plaintiff was not performing a repair or alteration when he was injured, and was instead engaged in routine maintenance. The defendants' evidence showed that the plaintiff's work "involved replacing components that require replacement in the course of normal wear and tear" and did not constitute "repairing," "altering," or any other enumerated activity (See Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 49). In opposition, the plaintiff failed to raise a triable issue of fact.

The Appellate Court properly held in favor of the defendants, reasoning that plaintiff's work was not protected by Labor Law § 240(1). Most notably, the Court properly identified the distinction between repairs and routine maintenance, as plaintiff’s work was correctly categorized as routine maintenance, and as such, falling outside of the scope of section 240(1).

C&F Obtains Summary Judgement in Motor Vehicle Negligence Action

We recently obtained summary judgment in New Jersey Superior Court, Middlesex County, in a motor vehicle negligence action. In the Complaint, plaintiff alleged the defendant driver was negligent and careless in the ownership, operation, maintenance, and control of their vehicle causing severe and permanent injuries. Further, plaintiff alleged, the operator’s negligence was imputed to the owner of the motor vehicle.

In order to hold a party liable on a theory of negligence the plaintiff must establish four elements: (1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages. In the context of this case, the law imposes upon the driver of an automobile the duty of exercising such care as is reasonable under all the circumstances confronting him/her at the particular time. Moreover, an owner of a motor vehicle cannot be held vicariously liable for the alleged negligence an operator of that motor vehicle unless it is determined that: (1) the operator of the vehicle was acting as the owner’s agent, servant, or employee; (2) the owner was present in the motor vehicle and maintained some control over its operation; (3) the owner entrusted its operation to an incompetent or unfit person; or (4) the owner and driver were engaged in a joint enterprise or partnership activity.

In this matter, plaintiff sustained injuries after being rear ended in a three (3) car motor vehicle accident. The plaintiff was stopped at a traffic light and the defendant operator was stopped directly behind the plaintiff. As the plaintiff and operator were stopped, the co-defendant struck the operator, which caused the operator to strike the plaintiff’s vehicle. As a result, plaintiff sustained multiple disc bulges, muscle spasms, hypertension/hyperflexion to the cervical and lumbar spine, and radiculopathy of the cervical and lumbar spine; these injuries were alleged to be permanent.

We argued the operator did not breach any duty owed as there is no evidence the operator operated the vehicle in a negligent manner that would have fallen below the duty owed to the plaintiff. Even if there was such a breach, the plaintiff did not and could not forward any evidence the negligence was the proximate cause of the plaintiff’s injuries. The operator was stopped behind the plaintiff at a traffic light; the operator did not make contact with the plaintiff’s vehicle prior to the co-defendant’s impact. As a result, the sole cause and proximate cause of the accident, was the force of the impact from the co-defendant’s vehicle. Lastly, we argued if any negligence was found upon the operator, it could not be imputed to the owner. The owner did not operate the vehicle, he did not entrust the vehicle to a person incompetent or unfit, he engaged in a joint enterprise activity, nor was the operator operating the vehicle on the behest of the owner as an agent, employee, or servant.

Subsequent to the filing of the motion, we appeared before the Court for oral arguments. Ultimately, the Court granted the motion for summary judgment in full against both the owner and operator.