Municipality Held Not Liable for Fall over Bench at its Baseball Field

The plaintiff Anthony Victor filed suit against the Borough of Red Bank and its Board of Education after he tripped over the dugout bench that had been moved behind the bleachers of the municipality’s baseball field. The plaintiff had been at the Red Bank Count Basie Field to watch his grandson’s baseball game. The issue in Victor v. Borough of Red Bank, A-1393-17T2 (App. Div. Sept. 27, 2018) was whether the placement of the bench behind the bleachers constituted a dangerous condition of public property so as to impose liability on the defendants.

The bench had been moved between fields to provide players a place to sit during games and practices. The bench was about 21 feet long and was held up by 4 vertical supports which ended in a perpendicular metal bar 2 inches in diameter. Each of the bars extended 15 inches beyond the back of the bench. The bench had been placed behind some metal bleachers on a concrete pad next to one of the fields. While it was not placed in an actual walkway, the defendants did concede that some spectators cut across the pad to reach the batting cages.

The plaintiff was walking behind the bleachers across the pad to reach the batting cages and another field when his right foot tripped on the last support. He did not see the bench’s metal supports as he walked because he was not looking down.

The defendants filed for a summary judgment, contending that the plaintiff did not demonstrate that the property was in a dangerous condition and the placement of the bench was not palpably reasonable. The trial judge concluded that the bench was not a dangerous condition to those who made proper observations and granted the motion to dismiss the case.

Pursuant to the Tort Claims Act, N.J.S.A. 59:4-2, for a public entity to be held liable for a dangerous condition of its property, the plaintiff must establish that the property “was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred.” Further, the plaintiff must prove that the dangerous condition was created by an employee of the public entity or that the public entity had actual or constructive notice of the dangerous condition.

Even if a plaintiff is able to prove that there existed a dangerous condition of public property that caused the injury, the statute further provides that no liability would be imposed “upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.”

The defendants did not dispute that the plaintiff was injured by tripping over the bench. However, they focused on whether the concrete pad, where spectators were known to walk, was in a dangerous condition and, if so, whether the failure to correct it was palpably reasonable. The Appellate Division noted that the statute defined “dangerous condition” as “a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”        

The Court found that the trial court was correct that the plaintiff failed to establish that the Borough’s placement of the bench behind the bleachers rendered the concrete pad in a dangerous condition to a person who foreseeably would walk behind the bleachers to access the batting cages or one of the other fields. Plaintiff had admitted that there was nothing obscuring his view of either the bench or the bleachers. He tripped over one of the bench supports after walking almost the entire length of the bench.            

Because it found that the plaintiff did not use “due care” in the foreseeable use of the property, the Appellate Division agreed that the property was not in a dangerous condition. Further, it found that the plaintiff had presented no proof that the placement of the bench or the failure to move it was “palpably unreasonable,” which term is defined as “manifest and obvious that no prudent person would approve of its course of action or inaction.” The Court also noted that if this case had been brought against a private owner without statutory immunities, the obvious nature of the bench and its supports would make it difficult for the plaintiff to recover against an owner. Hence, the Appellate Division affirmed the trial court decision, dismissing the case against the defendants.


Dress Codes and Docking of Pay

When I examine employee handbooks as part of my legal review of such documents, a frequently seen policy involves dress codes and the inclusion of possible employee sanctions for not following such a policy.  Most policies I review inform employees that if they fail to follow the dress code they will be sent home and not be paid for the time it takes them to return to work.  Are such policies legal?  The answer may surprise you.

As such policies apply to non-exempt hourly employees, not paying for the time spent away from work while bringing their attire in line with company policies is indeed a legally appropriate sanction.  Why? Because by their very status, hourly non-exempt employees get paid for only actual time worked.  Thus, if a Company wants to dock the offending employee wages as a sanction for violating a dress code policy, there is no violation of wage and hour laws: the employee simply clocks out and clocks back in when returning in the proper work attire and does not get paid for the time he/she is not working.

On the other hand, for exempt employees, these same rules do not apply.  Exempt employees get paid a weekly or bi-weekly salary, and so long as the employee performs services at any juncture of the work day the employee is entitled to be paid the daily portion of his salary for that day.  So, if the exempt employee is found to have violated a dress code policy after already performing work on a particular day, the employee must be paid that entire day’s salary even if sent home and told to return in suitable clothing.

Moreover, be aware that there are very strict rules for deducting any monies from the salary of an exempt employee, and the allowable grounds for making such deductions typically involve the violation of serious workplace rules.  Now, here is another legal catch-even if the employer has grounds for sanctioning an exempt employee by withholding a portion of his/her salary as punishment, any deduction that is for less than a full day’s pay is illegal.  Thus, in our hypothetical, not only would a deduction from pay  not be warranted because dress code violations are usually not serious enough to meet wage and hour requirements, but deducting pay for only the brief time out of work to correct the problem also does not satisfy the full day deduction rule.  Thus, while even exempt employees can be sanctioned for violating dress codes, docking pay is not going to be one of those options in most situations.

As this example shows, sometimes wage and hour rules can create unexpected traps that an employer can easily fall into, and not realize there has been a legal violation.  Thus, anytime your business is thinking about making disciplinary deductions from pay, make sure you consult with an experienced employment lawyer first to avoid such unexpected wage and hour pitfalls.


Is Forty Years A Long Enough Wait to Strengthen the Intoxication Defense?

One of the many defenses employers can raise in a workers’ compensation case is that of employee intoxication.  N.J.S.A. 34:15-7 states that when an injury or death is intentionally self-inflicted, or when it is a matter of intoxication, the employee is not entitled to compensation.  However, the intoxication defense is rarely successful in New Jersey in part because of how the statute is currently written.

New Jersey Senate Bill 1420 proposes changes to N.J.S.A. 34:15-7.  While some of the changes are cosmetic in nature, and largely address grammar or structure, the specific purpose of the bill is to address the role of the intoxication defense in workers’ compensation claims.  If passed, intoxication would be the presumed cause of an accident in which an employee was proven intoxicated. This is a drastic change from the current practice, which requires intoxication to be the sole cause of the accident to be a successful defense.

Tlumac v. High Bridge Stone and the Intoxication Defense

At present, New Jersey Courts follow the interpretation set forth in Tlumac v. High Bridge Stone.  In Tlumac, the petitioner was in a tractor-trailer accident and sought to recover benefits.  The employer asserted the intoxication defense as blood tests indicated the petitioner was likely still intoxicated from the prior evening at the time of the accident.  The Supreme Court of New Jersey held that “the statutory defense of intoxication requires that intoxication be the sole cause of the accident to bar recovery for workers’ compensation benefits.”  Tlumac v. High Bridge Stone, 298 N.J. 567 (2006).  As such, the petitioner in Tlumac was awarded benefits despite his intoxication, as other factors such as the early morning hour or his long work shifts could have contributed to the accident.

In practice, this interpretation of the statute makes it more difficult for employers to claim an intoxication defense and bar an intoxicated employee from recovery.  Currently, if an employee can present other potential contributing factors to the injury he or she will likely be awarded compensation, regardless of their blood alcohol content.

New Jersey Senate Bill 1420

Partially in response to Tlumac, as well as the case law since that time, New Jersey Senate Bill 1420 was sponsored in February 2018 by Senator Christopher J. Connors and was referred to the Senate Labor Committee.  Among other edits, the bill proposes adding a ‘Part B’ to the present statute, which would state “[i]f the employee was intoxicated when the injury or death occurred, it shall be presumed that the injury or death was caused by the intoxication and the employee shall be barred from receiving workers’ compensation.”

A Shifting of Burdens

The Court in Tlumac concluded that the New Jersey Legislature intended for benefits to be “readily and broadly available” to injured employees, and thus placed the burden on the employers to show by a preponderance of the evidence that intoxication was the sole cause of the work related injury.  This interpretation makes it nearly impossible for an employer to deny claims based on employee intoxication, because it is not the blood alcohol level which will bar compensation, but the complete lack of any other potential contributing factor.

Were New Jersey Senate Bill 1420 to be made law, the employer would no longer need to prove that intoxication was the sole cause of the accident because the statute would plainly state a presumption that the injury was caused by the intoxication.  In effect, the burden of proof would shift from the employer back to the employee.  The employer would still bear the burden of showing that the employee was intoxicated at the time of the injury.  However, once intoxication was established, the employee would now need to overcome a statutory presumption that the intoxication was the cause of the accident, instead of simply providing possible alternatives.  While this bill still leaves some room for interpretation with the court, especially as to the extent of the burden of proof and what type of evidence or situation would be required to overcome the new statutory presumption, that shift would give a greater weight to this defense.

Application of New Jersey Senate Bill 1420

As an example, a petitioner has filed a claim petition against a respondent, claiming that the employee was in a motor vehicle accident and struck a pothole, causing the vehicle to flip.  The employee petitioned the courts for workers’ compensation benefits as this accident occurred while working.  The respondent denies the matter, asserting the intoxication defense, as the employee’s blood alcohol content was .13 at the time of the accident.

Under the Tlumac test, the respondent would need to prove that the sole cause of the accident was the petitioner’s intoxication.  If the petitioner showed that the pothole was a contributing factor and was a reason for the accident, the employee would still be awarded benefits under current case law.

If New Jersey Senate Bill 1420 is enacted, the outcome of that case would shift in favor of the respondent.  As soon as the respondent established the blood alcohol content was above the legal limit, it would be presumed that the accident was a result of the petitioner’s intoxication.  The petitioner would now need to prove that their intoxication was not the cause of the accident or be barred from recovery under statute.

How Likely Is This Bill to Become a Law?

Legislative intervention has been a long time coming in regard to this provision of the workers’ compensation statute.  This specific bill, however, is extremely ambitious and, given the nature of the proposed changes, this version of the bill is unlikely to make it out of committee.  In fact, this is the second time it has been proposed in recent history, with the first attempt being in February 2016.  It did not pass then, and it is still unlikely to pass now, as labor unions strongly oppose it.

A change of this magnitude will likely be viewed as too restrictive for a system with the goal of compensating injured employees.

Middle Ground and Compromise

Given that N.J.S.A. 34:15-7 has not been updated since January of 1980, it is definitely time for a change.  However, change comes in small stages, not radical shifts.  While workers’ compensation is based on the law, a lot of this practice is about compromise.

While the statute was created to protect workers’ rights, these laws are also meant to be fair for both parties.  We are more likely to see a law pass that focuses on changing the burden, or the recovery, in small yet impactful ways.  For example, a bill proposing a bar to recovery if intoxication is a substantial cause of the accident, or a bill proposing a decrease in award if the employee was intoxicated, would be far more likely to pass than what is currently proposed.  In either case, the intoxication defense would become something far more reasonable again, instead of a pipe dream for employers to pursue.


New Jersey Senate Bill 1420 would create a powerful shift in how the intoxication defense is litigated in workers’ compensation, but that type of change is unlikely to be approved.  A “substantial cause” bill might be a better alternative.


Appellate Division Reverses Order Denying Motion to Dismiss NJCRA Claims against New Jersey DEP Employees on the Basis of Qualified Immunity

In the recent precedential opinion of Radiation Data, Inc. v. N.J. Dep’t of Envtl. Prot., 2018 N.J. Super. LEXIS 149 (App. Div. Nov. 2, 2018), the Appellate Division highlighted the importance of resolving a public employee’s assertion of qualified immunity on a motion to dismiss for failure to state a claim that was filed under the New Jersey Civil Rights Act.  In doing so, the Appellate Division sent a clear message to lower courts that a perceived need for discovery is not an excuse for dodging the pure legal question of whether a right is “clearly established,” and that courts must remember that qualified immunity is not just a defense to liability but is also an immunity from suit, including the burdens attendant to litigation.

Radiation Data, Inc. (“RDI”) filed a claim under the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c), against several employees of the New Jersey Department of Environmental Protection (“NJDEP”) for allegedly violating RDI’s constitutional rights as administrative enforcement litigation proceeded in the Office of Administrative Law.  Beyond claiming that NJDEP did not pursue enforcement actions against other radon companies for the same kinds of violations, RDI alleged that several NJDEP employees refused to respond to RDI’s telephone calls and emails regarding business and compliance matters, channeled communications between the adverse parties through counsel, prohibited RDI from hand-delivering a license renewal form to the NJDEP’s offices, made several threatening remarks to or about RDI, refused to meet with an RDI representative, and uttered an anti-Semitic slur about the President of RDI.  The issues in this precedential opinion were: (1) whether RDI’s substantive due process claim against the NJDEP employees should have been dismissed on the basis of qualified immunity; and (2) whether RDI’s equal protection claim against the NJDEP employees should have been dismissed on the basis of qualified immunity.  The trial court, on a motion to dismiss pursuant to Rule 4:6-2(e), answered both questions in the negative, so the NJDEP employees appealed.

On leave to appeal granted, the Appellate Division found that the trial court “misapplied principles of qualified immunity from suit” in denying the NJDEP employees’ motion to dismiss.  The trial court essentially held that consideration of qualified immunity had to wait until summary judgment.  But the Appellate Division wrote that “the trial court must exercise its discretion in a way that protects the substance of the qualified immunity defense . . . so that officials are not subjected to unnecessary and burdensome discovery or trial proceedings.”  Indeed, “unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.”  Thus, since “qualified immunity is not simply immunity from a final judgment, but is immunity from suit,” and since “[t]he claims of constitutional deprivation [we]re ripe . . . for dismissal on immunity grounds,” the Appellate Division “discern[ed] no need to withhold immunity-based dismissal, pending discovery.”

With respect to RDI’s equal protection claim, the Appellate Division wrote that it was based on the “class-of-one” theory, which required proof that RDI was both intentionally and irrationally treated differently from others who were similarly situated.  The Appellate Division found that the NJDEP employees were entitled to qualified immunity on the selective enforcement claim because the regulatory action was “multi-dimensional” and because RDI, the largest radon mitigation business in New Jersey, was not similarly situated to other such businesses.  The Appellate Division also found that the NJDEP employees were entitled to qualified immunity on the disparate treatment claim because they had a rational basis to limit and channel RDI’s contacts given “the contentious adversarial context . . . existing while the administrative case was pending.”  Further, the Appellate Division found that “RDI had no ‘clearly established right’ to dictate how [the NJDEP] was to communicate with RDI while the hotly-contested litigation was ongoing.”  Indeed, “[g]overnment must retain the discretion to respond to private parties in a manner it finds most efficient and effective.”

The Appellate Division reached the same conclusion with respect to RDI’s substantive due process claim, which was grounded on an alleged violation of the right “to engage in common occupations of life ‘free from unreasonable governmental interference.’”  While a substantive due process violation is only actionable if the official conduct was “arbitrary, or conscience shocking, in a constitutional sense,” the Appellate Division found that NJDEP’s decisions “to pursue regulatory violations against RDI and to channel communications through counsel as the administrative case became increasingly contentions do not ‘shock the conscience.’”  Thus, “[t]he conduct alleged by RDI did not infringe upon any ‘clearly established’ constitutional rights of RDI.”


5 New Year’s Resolutions For Your Workplace In 2019

With 2019 around the corner, employers are presented with a wonderful opportunity to review internal policies/procedures and hopefully help avoid future workplace legal problems. Here are five suggested New Year’s Workplace Resolutions for 2019.

  1. When was the last time your employee handbook was reviewed and updated? Policies and procedures need to be revised periodically to keep current with ongoing changes in the law, especially in a place like New Jersey, where it is frequently the case that new laws and decisions impose new legal requirements. In that regard, remember you now need a policy regarding New Jersey’s Paid Sick Time Law that went into effect this past October! Therefore, 2019 presents a great opportunity for employers to review handbook polices and bring them up to speed with any recent legal changes that impact your workplace. Alternatively, if you do not have one yet, the upcoming new year of 2019 provides a wonderful chance for your workplace to reap the benefit of having all relevant workplace policies stored in one collective document.
  2. When was the last time your job descriptions were reviewed and updated? Job descriptions are very important, especially in gauging compliance with mandated accommodation requirements for persons with disabilities under both federal and state discrimination laws. Ask yourself: do your job descriptions accurately reflect what an employee actually does in their jobs today? Because courts often rely on how an employer defines the essential job functions of an employment position in assessing disability discrimination and failure to accommodate issues, it is important that employers maintain updated job descriptions so there will be a point of reference if any issues arise as to what the essential functions of a job position are for accommodation purposes. Moreover, just like employee handbooks, if you do not have job descriptions today, the beginning of the upcoming year is a good time to commence preparing them.
  3. When was the last time you conducted anti-harassment training? With the Me Too Movement and other recent societal trends in this area, employers must be proactive in ensuring that workplaces are free of harassment and discrimination, and conducting yearly training in this area is an excellent preventative tool for ensuring your anti-harassment and anti-discrimination polices are enforced and followed.
  4. When was the last time you conducted an audit of your payroll practices? A good part of my practice this year has been representing clients in state and federal wage and hour audit proceedings so it is good to be proactive in aggressively monitoring payroll practices to ensure audits do not find problems with such practices. One of the chief concerns to examine here is ensuring that all your employees are properly classified as exempt versus non-exempt employees for purposes of their proper compensation under federal and state wage and hour laws. It is always a good idea for an employer to do a quick review of employment classifications each year in case changes need to be made based upon any modifications in employee job responsibilities. In addition, please remember that, as of January 1 of each year, New Jersey’s minimum wage rate might be adjusted upwardly automatically based upon any increase in the consumer price index as of September 30 of the prior year. Thus, it is important that you properly keep track of any upcoming changes in New Jersey’s minimum wage.
  5. Are you properly performing background checks on current and prospective employees? Remember, there are strict requirements concerning how such background checks are conducted under not only the Fair Credit Reporting Act but also under relevant federal employment discrimination laws such as Title VII. Just a few years ago, the United States Equal Employment Opportunity Commission issued a detailed compliance guidance on how the results of a background check can be utilized in assessing a person’s suitability for employment, so it is important that all background check policies meet these requirements. Similarly, if you as an employer conduct your own background checks, and still request that employees and prospective employees provide private password protected information for their social media sites as part of that examination, such a practice is illegal under New Jersey Law. Therefore, it is critical that background check policies be modified to eliminate any potential violation of this limitation under New Jersey Law.

In sum, the upcoming new year provides a wonderful opportunity for employers to proactively evaluate internal policies and procedures to make 2019 a legally problem free year in your workplace. An experienced labor and employment attorney is a valuable asset in conducting these types of internal policy examinations to effectively minimize possible legal exposures.

Happy Holidays and Healthy New Year to All!!


Unmarried, Same-sex Partner Permitted to Bring Negligent Infliction of Emotional Distress Claim for Death of Partner’s Biological Child

I’Asia Moreland and Valerie Benning were a same-sex couple who lived with Moreland’s two biological children, I’Maya and I’Zhir, and Benning’s godson, Armonti.  On January 30, 2009, the five of them were waiting to cross the street to attend a “Disney on Ice” show in Trenton, New Jersey, when a fire truck and a pickup truck collided.  The collision caused the pickup truck to strike two-year-old I’Maya, propelling her body sixty-five feet from where she had been holding hands with Benning.  Tragically, I’Maya died as a result of the accident.  I’Asia Moreland and Valerie Benning filed several claims against the defendants, including bystander negligent infliction of emotional distress (“NIED”).

The main issue in the published Appellate Division decision of Moreland v. Parks, 456 N.J. Super. 71, 191 A.3d 729 (App. Div. 2018), was whether Valerie Benning could establish an “intimate, familial relationship” with I’Maya to satisfy the requirements for bringing an NIED claim.

Moreland and Benning were not married at the time of I’Maya’s death.  However, I’Asia Moreland and Benning had cohabitated for at least 17 months and shared similar responsibilities for the care of the three children, including I’Maya.  I’Maya’s biological brother, I’Zhir, referred to Benning and Moreland has his “two moms.”  Benning testified at her deposition that she had suffered extreme emotional distress over I’Maya’s death, and that she had lost one that she loved like her own that day.

Defendants filed a motion for partial summary judgment, seeking dismissal of Benning’s NIED claim.  The motion judge dismissed Benning and Moreland’s relationship as being mere “lovers.”  Additionally, the judge pointed out that Benning and Moreland were not engaged at the time of I’Maya’s death.  The motion judge went as far as to say that Benning was only part of I’Maya’s life for 17 months and “[t]here’s no evidence that there was any permanent bond or that the relationship that she shared with the decedent was one that was deep, lasting, and genuinely intimate.”

In the New Jersey Supreme Court’s decision in Portee v. Jaffee, the Court created the tort of negligent infliction of emotional distress to allow a narrow class of litigants the right to seek damages for emotional trauma caused by a tortfeasor’s negligence.  Justice Pashman fashioned four elements for this cause of action: “(1) the death or serious physical injury of another caused by defendant’s negligence; (2) a marital or intimate, familial relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting in severe emotional distress.” Portee, 84 N.J. at 101. In Moreland, the Appellate Division focused on the second element and whether Benning’s relationship with I’Maya rose to the level of an “intimate, familial relationship.”

In a later New Jersey Supreme Court decision, Dunphy v. Gregor, 136 N.J. 99 (1994), the Court extended the limited class of plaintiffs able to seek damages for NIED to a fiancé of the decedent.  In allowing the fiancé to seek damages, even though she was not married to the decedent, the Court crafted a new standard to define the second prong of the Portee test—what exactly constitutes an “intimate, familial relationship.”  The factors used in finding if such a relationship exists are (1) the length of the relationship, (2) the degree of mutual dependence, (3) the degree of shared contributions to a life together, (4) the extent and quality of joint experience, and (5) whether the plaintiff and the decedent were members of the same household, and other factors.

With that legal background, the Appellate Division in Moreland examined whether Valerie Benning had an intimate, familial relationship with I’Maya at the time of her death.  In making its decision, the Appellate Division noted that the definition of what a “family” is has greatly expanded since Portee was decided in 1980 and even since Dunphy was decided in 1994. The Appellate Division held that an “intimate, familial relationship” supporting a claim for NIED could include the relationship between a mother’s cohabitating same-sex partner and the mother’s biological child.  Therefore, the trial court improperly dismissed Benning’s claim because it was possible that a jury could find Benning maintained an intimate, familial relationship with I’Maya at the time of her death.


A Commercial Truck Driver Who Causes An Accident While Using a Cell Phone May Be Liable For Punitive Damages

The use of a cell phone by a commercial truck driver at the time of a motor vehicle accident may subject the driver to punitive damages.  In Ehler v. Old Dominion Freight Line, No. 2018-00307 (C.P. Lebanon August 30, 2018), filed in the Court of Common Pleas, Lebanon County, Pennsylvania, a commercial truck driver was sued for causing a 64-car accident during a winter storm. The plaintiffs alleged that the truck driver was on his cell phone at the time of the accident.  The plaintiffs sought punitive damages as they alleged that the use of a cell phone by a commercial truck driver under severe weather conditions is reckless. The truck driver filed preliminary objections seeking to strike the allegations of recklessness thus eliminating the possibility of punitive damages. The court overruled the preliminary objections, thereby allowing the plaintiffs to continue to seek punitive damages pending further discovery.

Punitive damages are used to punish a defendant’s behavior and to deter such future conduct. When a plaintiff alleges that a defendant was negligent in causing damages to the plaintiff, the plaintiff is entitled to seek such compensation as lost wages, unpaid medical bills and pain and suffering.  A defendant must be found to have acted recklessly through outrageous or willful misconduct demonstrating an evil motive or reckless indifference to the rights of others in order to pursue punitive damages.  A plaintiff must allege specific facts that demonstrate this type of behavior in a complaint.  A defendant can challenge a plaintiff’s ability to seek punitive damages through preliminary objections.  Preliminary objections are used to strike portions of a plaintiff’s complaint prior to discovery to eliminate irrelevant or inappropriate allegations.

The defendant-truck driver sought to strike the claims for punitive damages by arguing that merely being on the phone while driving does not amount to reckless conduct. However, Pennsylvania’s Distracted Driving Law prohibits commercial truck drivers from using a cell phone while driving except for contacting emergency personnel.  Additionally, it is alleged that snow produced “white-out” conditions at the time of the accident. The court held that under these circumstances it was even more important for a truck driver to take extra precautions while driving in severe weather conditions.

However, since the driver’s estate is proceeding in the defense of this lawsuit, it is unknown who the driver was on the phone with at the time of the accident and even if there was any actual connection between being on the phone and the happening of the accident. Even with these unknown facts, the court held the allegations were specific enough to warrant keeping the possibility of punitive damages alive pending further discovery. The court did hint that these allegations could be stricken in the future if facts are uncovered during discovery that do not support them.

In a time when distracted driving is a major safety concern to anyone on the roads, it is important to thoroughly analyze and scrutinize a plaintiff’s complaint to determine the viability of a plaintiff’s allegations of reckless conduct that could open the door for punitive damages.  Punitive damages can lead to increased jury verdicts as it allows a jury to not only compensate a plaintiff, but to punish a defendant and deter such future behavior.  Therefore, preliminary objections must be strongly considered to challenge these types of allegations during the early stages of litigation.


Storm In Progress Defense Under New York Law

By: Kristen Mowery, Law Clerk

Under New York law, courts recognize an exception to the ordinary duty of care owed—that is, to keep the landowner’s premises reasonably safe of dangerous or hazardous conditions—known as the storm in progress doctrine.  Brandimarte v. Liat Holding Corp., 158 A.D.3d 664, 664-65 (N.Y. App. Div. 2018); Gervasi v. Blagojevic, 158 A.D.3d 613, 613 (N.Y. App. Div. 2018).  According to the storm in progress rule, plaintiffs are precluded from recovering for injuries that occur on a landowner’s property and are caused by the accumulation of snow and ice.  Smith v. Christ’s First Presbyterian Church, 93 A.D.3d 839, 839-40 (N.Y. App. Div. 2012).  The exception shields landowners from liability where the storm is ongoing because “shovel[ing] snow while continuing precipitation or high winds are simply re-covering the walkways as fast as they are cleaned [would] render[] the effort fruitless.”  Powell v. MLG Hillside Assocs., 290 A.D.2d 345, 345 (N.Y. App. Div. 2002).  Thus, landowners are afforded a reasonable time following the cessation of a storm to remedy the dangerous condition the storm created. Id.

Where a defendant presents sufficient evidence that the storm was ongoing during the time of the injury, she is entitled to judgment as a matter of law. See id. at 345 (“Where the evidence is clear that the accident occurred while the storm was still in progress, defendants may avail themselves of the rule as a matter of law.”); see also Sherman v. New York State Thruway Auth., 27 N.Y.3d 1019, 1021 (N.Y. 2016); Smith, 93 A.D.3d at 839; Marchese v. Skenderi, 51 A.D.3d 642, 642 (N.Y. App. Div. 2008). Furthermore, as the party moving for summary judgment, a defendant “ha[s] the burden of establishing, prima facie, that it neither created the snow and ice condition nor had actual or constructive notice of the condition.” Smith, 93 A.D.3d at 839.

Defendants can satisfy this prima facie burden by presenting testimonial or deposition evidence of witnesses, experts, or the plaintiff herself.  See Sherman, 27 N.Y.3d at 1021.  The most persuasive evidence, however, is “the analysis of a licensed meteorologist.”  Powell, 290 A.D.2d at 345.  In Powell, one of the leading New York cases on the doctrine, plaintiff’s meteorologist presented climatological charts to show that approximately two inches of snow had fallen overnight, but that “precipitation had tailed off to less than one-tenth of an inch (the equivalent of less than 0.01 inches of rain) per hour” by 6:00 a.m. the following morning.  Id. at 346.  Because the fall occurred around 9:15 a.m., and because the custodian was not brought to the scene until anywhere from 8:00 a.m. to 9:40 a.m., the court concluded that the defendants failed to act with the appropriate degree of care once the storm ceased and their duty of care arose.  Id. at 345-46.  To this end, the court noted, “[o]nce there is a period of inactivity after cessation of the storm, it becomes a question of fact as to whether the delay in commencing the cleanup was reasonable.”  Id. at 346.

In 2016, the highest New York court supported its decision to affirm the Appellate Division’s grant of summary judgment for defendants with defendant’s uncontroverted evidence of plaintiff’s own testimony and a certified weather report.  Sherman, 27 N.Y.3d at 1021.  Sherman involved a New York State Trooper who sought recovery from the New York State Thruway Authority following a fall on an icy sidewalk outside the plaintiff’s barracks.  Id. at 1020.  Defendant presented plaintiff’s deposition, in which plaintiff testified that “‘an ice storm’ had taken place the night before the accident, and an ‘intermittent wintry mix’ of snow, sleet and rain persisted the next morning until 6:50 a.m., when claimant arrived at the trooper barracks for work.”  Id. at 1021.  Because there was continuous precipitation at the time of the accident around 8:15 a.m., that had been ongoing since the night before and involved near freezing temperatures, the court concluded that defendant was entitled to the storm in progress defense and thus, not liable as a matter of law. Id.

Landowners must keep their premises free of dangerous conditions, including those caused by snow, ice, and freezing rain.  However, New York law recognizes the need to allow for a reasonable period of time before the obligation to clear walkways arises.  Where a storm is still ongoing and an unfortunate accident occurs, the injured party can only recover if it shows the landowner’s duty arose following the storm’s cessation, and that the landowner failed to remedy the dangerous situation within a reasonable time.  New York courts will grant summary judgment and dismiss a plaintiff’s complaint where landowners present prima facie evidence, especially from a certified meteorologist, that the storm was ongoing at the time of the injury.  As one New York opinion expressed, “in the absence of proof that the plaintiff slipped and fell as a result of something other than snow, the plaintiff has no cause of action against the defendants.” Marchese, 51 A.D.3d at 643.


Attorney’s Fee Award Denied By Federal Court on Basis of Being Outrageously Excessive

Plaintiff Bernie Clemens was awarded $100,000 in punitive damages under the Pennsylvania Bad Faith Statute in a federal jury trial. He then submitted a petition to the District Court judge for over $900,000 in attorney’s fees from the defendant New York Central Mutual Fire Insurance Company. The District Court denied the petition in its entirety on the basis that it was not adequately supported and that the requested amount was grossly excessive. In the published decision of Clemens v. New York Central Mutual Fire Insurance Company, 2018 U.S. App. LEXIS 25803 (3rd Cir. 2018), the United States Court of Appeals for the Third Circuit upheld the denial of attorney’s fees.

Plaintiff Clemens had been dissatisfied with the defendant insurance company’s handling of his insurance claim related to a serious car accident and filed suit against the company in state court in Pennsylvania, asserting a contractual UIM claim and a claim under Pennsylvania’s Bad Faith Statute. The case was removed to federal court and the parties settled the UIM claim for $25,000. The bad faith claim, however, proceeded to a weeklong trial, at the conclusion of which, the jury found that the insurance company had acted in bad faith and awarded Clemens $100,000 in punitive damages.

As the prevailing party under the Bad Faith Statute, the plaintiff then submitted a petition for attorney’s fees in which he requested an award of $946,526 in fees and costs. The District Court denied the request in its entirety in a “thorough and well-reasoned 100 page opinion.” The court found that 87% of the hours billed had to be disallowed as vague, duplicative, unnecessary, or inadequately supported by documentary evidence. Hence, the District Court found that the fee request was “outrageously excessive” and exercised its discretion to award no fee whatsoever.

The Third Circuit noted that the Pennsylvania Bad Faith Statute used the word “may” with respect to the award of attorney’s fees and costs. Thus, the Court found that it was within the judge’s discretion whether or not to award attorneys fees. The Third Circuit held that the fee request must be reasonable. It would not disturb the District Court judge’s decision absent an abuse of discretion. The Court stated that “[a]lthough it was unusual, we cannot say that this decision was an abuse of discretion.”

The Third Circuit enumerated the many problems with the fee application. To start, counsel did not maintain contemporaneous time records for most of the litigation and they had to be recreated. The responsibility of reconstructing the time records was left to a single attorney, who not only had to estimate retrospectively the length of time she spent on each individual task, but also had to estimate the amount of time that her colleagues spent on task because they had left the firm by the time the fee petition was filed.  While contemporaneous records are not required, the Court noted that it was the “preferred practice.”

Further, the time entries submitted were so vague that there is no way to discern whether the hours billed were reasonable. Some entries were, on their face, unnecessary or excessive. In particular, the Third Circuit noted that counsel billed a “staggering” 562 hours for “trial prep” or “trial preparation” with no further description of the nature of the work performed. The Court agreed with the District Court that this amount was an outrageous number under the circumstances. That would mean that if counsel did nothing else for eight hours a day, every day, counsel would have spent approximately 70 days doing nothing but preparing for a trial, which consisted of only four days of substantive testimony with a total of five witnesses for both sides.

And, even more troubling was the fact that the counsel’s hard work did not appear to pay off at trial. The District Court had to repeatedly admonish counsel for being unprepared because he was so obviously unfamiliar with the Rules of Evidence, Rules of Procedure and rulings of the court. Hence, the Third Circuit agreed that the District Court did not abuse its discretion in disallowing all of the 562 hours for this trial preparation.

Also, the Court pointed out that counsel neglected their burden of showing that the requested hourly rates were reasonable in light of the prevailing rate in the community or similar services by lawyers of reasonably comparable skill, experience, and reputation. Four of the five billing lawyers, including lead counsel, provided no information whatsoever on which the District Court could make a determination whether the requested hourly rate was reasonable. For all of these reasons, the District Court concluded, based upon the disallowance, as well as other reductions, that counsel was entitled to only 13% of the fees they requested. Accordingly, the District Court found that the request was “outrageously excessive” and exercised its discretion to award no fee at all.

The Third Circuit stated that while it had never had the opportunity to formally endorse such an approach, other circuits have held that district courts may exercise discretion to deny a fee request in its entirety when the requested amount is outrageously excessive under the circumstances. The rationale is that unless the court has this kind of discretion, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such conduct would be a reduction of their fee to what they should have asked for in the first place. The Third Circuit agreed with this rationale. It stated that is the duty of the requesting party to make a good-faith effort to exclude “ hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.”

The Third Circuit found that the District Court provided a thorough explanation of how counsel failed to fulfill their duty to the court. That failure, along with the other deficiencies in the fee petition and counsel’s substandard performance, justified the District Court’s decision to deny the fee request in its entirety. The Third Circuit found that this decision was not an abuse of discretion and, thus, affirmed the order of the District Court denying the plaintiff’s fee award.


Third Circuit Affirms Dismissal of Excessive Force Claim Because Plaintiff Cannot Identify Police Officer Who Kicked Him

Two police officers from the Riverdale Police Department and three troopers from the New Jersey State Police encountered Plaintiff Emil Jutrowski, who was heavily intoxicated, after he crashed his vehicle along the shoulder of a highway and sustained injury.  While the officers were escorting Jutrowski to an ambulance, he struck one of the troopers who was trying to steady him, so the officers brought him to the ground and tried to put him in handcuffs.  During the ensuing scuffle, one of the officers kicked Jutrowski on the right side of his face, breaking his nose and eye socket.  The issues in the published decision of Jutrowski v. Twp. of Riverdale, 2018 U.S. App. LEXIS 25806 (3d Cir. 2018), were: (1) whether Jutrowski could survive summary judgment on his excessive force claim when he could not identify which of the four officers named in the complaint had kicked him, and (2) whether Jutrowski could survive summary judgment on his civil conspiracy claim based on the officers’ alleged after-the-fact cover-up of the events giving rise to the case.  The District Court answered both questions in the negative and dismissed Jutrowski’s claims with prejudice.

On appeal, the Third Circuit agreed that the officers were entitled to summary judgment on Jutrowski’s excessive force claim.  Relying on the core principle of § 1983 litigation that a plaintiff resisting summary judgment must produce evidence supporting each individual defendant’s personal involvement in the alleged constitutional violation in order to bring that defendant to trial, the Court found that the record was insufficient for any reasonable jury to identify which, if any, of the officers had used excessive force.  Indeed, while Jutrowski had narrowed the potential universe of actors to those that were in his immediate vicinity, he admittedly sought to proceed to trial against at least three officers who were free of liability without ever ascertaining which officer was the perpetrator of the constitutional deprivation.  Like the District Court, the Third Circuit was thus unwilling to have a jury “guess” as to which officer had kicked Jutrowski.

However, the Third Circuit reversed the order granting the officers’ motion for summary judgment on Jutrowski’s after-the-fact civil conspiracy claim, which was not dependent on Jutrowski’s ability to identify the officer who had kicked him.  Jutrowski’s theory was that the officers had conspired with one another to cover up the use of force during the arrest and thus to deprive him of his constitutional right of access to the courts to be heard on his underlying excessive force claim.  The Court found that there were material omissions in contemporaneous police reports from which a jury could infer a conspiracy – namely, the fact that none of the reports mentioned that Jutrowski suffered significant injuries during the course of his arrest.  The Court also pointed to inconsistent accounts of the vantage point of one of the officer’s vehicles, the absence of that officer’s dashcam footage from the record when all of the other officers’ vehicles recorded the encounter, and the fact that several officers acknowledged having discussed the case with each other while they were writing their reports.  Further, the Court relied on Jutrowski’s expert report, which concluded that his injury most likely resulted from a kick or a punch and not from a face-first fall to the ground.  Thus, the Court remanded Jutrowski’s conspiracy claim for further proceedings.

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