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Employer Social Media Searches-Beware Of What You Wish For!

Thanks to the internet, employers have access to more and more information about their employees and prospective employees than ever before. And most employers love that so much information is now available to them to guide their hiring practices.

Recently, I have gotten multiple questions from clients asking whether it is a smart thing for them to incorporate social media searches into the scope of their usual background checks on employees and prospective employees. My repeated advice is that employers must proceed with caution in this area that, for a variety of reasons, is fraught with the potential for legal peril.

Initially, if planning to look at social media sites, employers must be aware that New Jersey has a law which prohibits employers from demanding from employees or prospective employees that they supply their passwords so that the employer/prospective employer can access password protected private social media areas. While such private social media areas are protected and off limits, publically accessible information on the internet is not, and the law says that employers/prospective employers can consider what is publically accessible in areas where password access is unnecessary. But, as discussed below, there are looming legal dangers lurking even in those publically accessible areas of the world wide-web.

Moreover, employers who do any sort of a background check on employees and /or prospective employees must also ensure that they comply with the Federal Fair Credit Reporting Act (“FCRA”).  Under the FCRA, an employer seeking to do a background check on an employee/prospective employment candidate must meet certain consent and disclosure requirements if the employer will be using an outside consumer reporting agency to conduct the search. Thus, if the employer uses an outside company to conduct the social media search, then compliance with the written consent and disclosure obligations of the FCRA will need to be followed. The outside consumer reporting agency will typically supply those necessary forms for the employer’s use to give to an employee/prospective employee before the search occurs, but I would recommend that a quick legal review of the paperwork be done by counsel to make sure the supplied documents are compliant with the FCRA.

Alternatively, if an employer plans to do a search of social media sites itself, it need not meet the requirements of the FCRA.

Nevertheless, whether utilizing either of the above referenced methods, doing searches of an employee/candidate’s social media sites can place an employer in a precarious situation.  For one thing, there is a lot of maliciously planted information about persons on the internet so the searcher must be very careful in sifting through what is truthful (and what is not truthful) information about a candidate.  Moreover, sometimes, the employer will learn things about a candidate on the internet that it is legally prohibited from knowing during the interview process, and this could lead to unexpected trouble for the employer.

For example, under the law, you cannot ask prospective employment candidates whether they either have a disability, or to disclose their age. By searching social media sites, the prospective employer can, even if not explicitly seeking such information, unwittingly gain knowledge of such prohibited information that should legally have no bearing on the hiring decision. The danger in that scenario lies in the following: if the prospective employee is ultimately denied employment, and learns that the employer found out things about him/her by doing a social media search that reveals legally off limits information like the above, the prospective employee might conclude that consideration of the prohibited information led to the adverse employment decision, even when it did not, and now the employer is embroiled in an unwanted failure to hire lawsuit. No employer would want to find itself in that type of situation ever.

Similarly, here is another common example of an employer web search that could also cause unexpected legal problems. While legally it might be appropriate for the employer to search for current and past civil law cases involving the candidate in a public area of the internet, if the employer decides to not hire the candidate because of a previous lawsuit filed under, say the New Jersey Law Against Discrimination (“NJLAD”), the employer now could be sued for retaliation for withholding a job offer because the prospective employee exercised a protected right to file suit under the NJLAD. Again, another unwanted (and unexpected) situation for an employer.

As these examples therefore show, any employer doing social media searches must do them carefully to avoid the possibility of this kind of unwanted legal peril. If an employer still wants to do social media searches despite knowledge of the above risks, here are some recommended guidelines.

First, access social media sites only after the candidate is interviewed and only if truly interested in that candidate.  Second, the employer must be consistent in conducting such searches-if you do it for one candidate, they have to be done for all candidates. Inconsistent and selective use of searches could otherwise give rise to discrimination claims.  Third, document what is considered (and by implication what was not considered.)  Fourth, the employer must verify the information obtained before using it, especially where the information comes from a third party site as opposed to the candidate’s own site. Finally, the search function itself should be centralized and performed as an integrated part of the overall background check.  In this regard, HR is the best positioned in the company to oversee such search activities. Furthermore, just as critically important, there should likewise be no searches conducted independently by hiring managers or anyone else so the employer has centralized control over the process.

Following the above guidelines should help in controlling the potential problems that could arise from the use of social media search efforts.  But, in the end, and as counterintuitive as it may seem, the most legally effective way of avoiding unwanted problems in this area may actually be fighting the employer’s pressing urge to want to  learn too much about a potential employee/prospective employee’s background.

 

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

Appellate Division Reaffirms Past Medical History Comparative Analysis Requirement in Cases Claiming Aggravation

The New Jersey Appellate Division recently issued an unpublished yet informative opinion in a matter involving a claim of aggravation of significant pre-existing injuries. The matter, Nichols v. Duke Linden, LLC, 2023 WL 4553463 (App. Div. July 17, 2023), involved a simple set of facts. Plaintiff slipped and fell on prevailing snowy conditions while making a delivery to a premises owned by Defendant Duke Linden, LLC and leased to Defendant Wayfair. Duke had retained BrightView Landscapes, LLC for snow removal services at the premises and BrightView, in turn, subcontracted the snow remediation work to Caruso Landscaping. 

After the Discovery End Date passed, the Court set both an arbitration and trial date. The defendants, with the exclusion of the already dismissed Wayfair defendant, filed Motions for Summary Judgment. These Motions emphasized that dismissal was proper based upon the purported failure of the Plaintiff’s orthopedic medical expert to provide a “sufficient comparative analysis” of Plaintiff’s documented past medical history with the injuries that he claimed to have suffered in the subject fall. Each Defendant argued that this lack of comparative analysis rendered Plaintiff’s expert opinion an inadmissible “Net Opinion” under applicable precedent thereby entitling Defendants to Summary Judgment.

The Trial Judge initially found that Plaintiff’s expert report was insufficient, based upon Davidson v. Slater, 189 N.J. 166, 186 (2007). However, rather than granting Defendants’ Motions for Summary Judgment, the Judge denied the Motions without prejudice and ultimately provided Plaintiff with ninety (90) days to provide an “updated” medical expert report including a comparative analysis. Meanwhile, Defendants filed a Motion seeking Leave to Appeal, which the Appellate Division granted, “remanding for the judge to decide the summary judgment motions on the record as it stood on the return date.” Slip. Op. at 1.

Upon remand, the Judge then granted the defense Motions for Summary Judgment. In so deciding, the Judge rejected Plaintiff’s argument that a comparative analysis was not required. Relying on the Supreme Court’s decision in Davidson, the Judge noted “the need for a plaintiff to produce a comparative medical analysis remains dependent on traditional principles of causation and burden allocation applicable to tort cases generally.”  Davidson, 189 N.J. at 184.

Thus, after finding that Plaintiff was required to provide a comparative analysis, the Judge held that Plaintiff’s expert reports were “devoid of any comprehensive analysis of plaintiff’s extensive medical history concerning the pre-existing conditions in his left knee and lower back[,] which plaintiff specifically allege[d] were ‘aggravated’ by the slip and fall accident.” Slip. Op. at 2. Accordingly, since Plaintiff’s expert reports contained no more than “conclusory statements as to the cause of the Plaintiff’s injuries without discussing Plaintiff’s prior medical history,” they constituted an inadmissible “Net Opinion,” leaving Plaintiff unable to rely on the reports in attempting to establish a prima facie case of negligence. Slip Op. at 1.

Plaintiff then appealed the Trial Court’s decision by arguing that a comparative analysis was not required and even if it was required, the submitted expert reports were sufficient for the purposes of establishing a prima facie case of negligence. In the alternative, Plaintiff argued that the Court should have held a hearing pursuant to New Jersey Rule of Evidence 104 so that the admissibility of the report could have been argued prior to the decision to dismiss Plaintiff’s claims.

However, as the Appellate Division noted, Plaintiff never requested such a hearing and continued only by “insist[ing] his expert did not need to conduct a comparative analysis.”  Slip. Op. at 2. The Appellate Division agreed with the Trial Court’s holding that since Plaintiff was pursuing a claim of aggravation of documented pre-existing injuries, Plaintiff was required to “medically segregat[e] a claimed aggravation of a pre- existing injury from the fresh injury.” See Davidson, 189 N.J. at 187. Plaintiff failed to document what the Appellate Division described as a “decades-long history of complaints and injuries to his left knee, including… two prior arthroscopic surgeries to that knee…”  Slip. Op. at 2. Accordingly, the Appellate Division held that the opinion of Plaintiff’s medical expert that the need for total knee replacement was causally related to the fall at issue here was a “classic” example of an inadmissible “Net Opinion,” “[t]hat is, an expert’s bare opinion that has no support in factual evidence or similar data.”  Pomerantz Paper Corp. v. New Community Corp., 207 N.J. 344, 372 (2011). Thus, Summary Judgment was properly granted to the Defendants.

Significantly, the Appellate Division concluded its opinion in the instant matter as follows:

The (New Jersey Supreme) Court warned sixteen years ago that ‘the plaintiff who does not prepare for comparative medical evidence is at risk of failing to raise a jury-worthy factual issue about whether the subject accident caused the injuries.’

Slip. Op. at 2 (citing Davidson, 189 N.J. at 188).

It is clear from this conclusion that while this opinion is neither published nor precedential, it is insightful as to how Courts will assess aggravation claims in the absence of a comparative analysis. While a Trial Court could potentially overlook less significant past medical histories as not needing a comparative analysis, at minimum, the argument that all aggravation claims require a detailed and definitive comparative analysis should be considered and raised by the defense.

The Long Road Home: The Eastern District of Pennsylvania Finds an Employer Liable for the Actions of its Employee During the Employee’s Ride Home from Work

The United States District Court for the Eastern District of Pennsylvania recently had occasion to broadly construe Pennsylvania’s vicarious liability precedent. In Nedelton v. Keebler, 2023 U.S. Dist. LEXIS 113564 (E.D. Pa. June 30, 2023), Plaintiff, Michael Nedelton, was struck by Defendant Christopher Keebler’s truck as Keebler was driving through an intersection near Logan Circle in Philadelphia. Keebler was in Philadelphia on the date of the incident because he was working for his employer, Defendant A&J Builders at a job site on the 13th floor of 1818 Market Street. However, at the time of the incident, Keebler was leaving the job site to return home.

Seeking to avoid liability for the actions of its employee, A&J Builders filed a Motion for Summary Judgment seeking the dismissal of all claims against it with prejudice. The basis for the Motion was that A&J Builders was not vicariously liable to Plaintiff for Keebler’s actions because Keebler was not within the scope of his employment at the time of the incident. Plaintiff opposed the Motion arguing that a genuine issue of fact existed as to whether Keebler was within the scope of his employment and therefore, the Motion should be denied so that a jury may assess the scope of employment issue.

On June 30, 2023, the United States District Court for the Eastern District of Pennsylvania denied defendant A&J Builders’ Motion for Summary Judgment finding that a genuine issue of material fact did exist as to whether Keebler was within the scope of his employment at the time of the subject incident. Specifically, the Court found that:

An employer is a “master,” or principal, who employs an agent, (i.e., his employee, or “servant,”) to render services on the employer’s behalf, and where the employer has the right to control the physical conduct of the employee in the employment of services on behalf of the employer, a negligent act within the scope of the employment will give rise to vicarious liability.

Nedelton, 2023 U.S. Dist. LEXIS 113564, at *5 (citing Shuman Estate v. Weber, 419 A.2d 169, 172 (Pa. Super. 1980)).

In citing this precedent, the Court also adhered to the long-standing principle that the determination as to whether a particular act of an employee is considered within the scope of his employment is generally a question reserved for the jury. This general principle does give way to an exception where no disputes exist as to material issues of fact and inferences drawn therefrom. See Shuman, 419 A.2d at 173.

Here, A&J Builders argued that since Keebler left the job site five minutes before the incident took place and was on his way home at the time of the incident, he could not possibly be within the scope of his employment. This position was well supported by applicable precedent finding that an employee is generally not considered to be acting within the scope of his or her employment while driving to and from a place of employment.

However, Plaintiff countered and the Court agreed that Keebler would not have been in Philadelphia but for (1) a request from his employer to work at a “rush job;” (2) to which he was required to bring his own tools; (3) to which no public transportation existed or could have practically transported him to the job site and; (4) from which Keebler proceeded directly home at the conclusion of his work at this site.

Relying on the Restatement (Second) of Agency § 228 as well as two decisions dating back to the 1940s, the Court found that sufficient evidence existed from which a jury could conclude that Keebler’s travel home from the job site was a “necessary and important” part of his employment with A&J Builders, and that the accident therefore could have occurred within the scope of Mr. Keebler’s employment. See U.S. v. New Jersey Mfrs. Co., 583 F. Supp. 579, 581 (E.D. Pa. 1984). In so finding, the Court denied A&J Builders’ Motion for Summary Judgment in what appears to be a decision backed by a broad interpretation of facts that would permit a jury to resolve the scope of employment issue.

The Supreme Court of New York Revisits Assumption of Risk Doctrine in the Context of Motocross Racing

Written by: Ruhani K. Aulakh, Law Clerk
Edited by: Patrick J. Graham, Esq.

The Supreme Court of New York, Appellate Division recently clarified the assumption of risk doctrine as it relates to sports participants.  In Fritz v. Walden Playboys M.C. Inc., 2023 NY Slip Op 03524 (June 29, 2023), plaintiff Joseph C. Fritz was practicing at the Walden motocross racetrack.  Fritz, who had years of experience riding motocross, took his first practice lap and noticed something was wrong with the track when the back of his bike kicked up irregularly.  Although he knew something was wrong with the track, Fritz performed a second practice lap to see what the issue was.  On this second practice lap, Fritz landed in a deep powder and was unable to gain control of his bike.  As a result, Fritz was thrown over the handlebars and sustained several injuries.

Fritz filed a suit against defendant, Walden Playboys M.C. Inc. (“Walden”).  After discovery, Walden moved for summary judgment, arguing that Fritz’s claims were barred by the assumption of risk doctrine.  Fritz opposed the motion, arguing that Walden created an unreasonable risk of harm by failing to address a hole in the track that was caused by negligent grooming of the track.  The lower court denied Walden’s motion, and Walden appealed the decision.

The Supreme Court reversed the lower court’s decision, holding that Fritz did not set forth a genuine issue of material fact sufficient to defeat summary judgment.  In coming to this conclusion, the Court first looked at the primary assumption of risk doctrine which states that a participant consents to risks that are obvious.  Further, to determine whether the assumption of risk doctrine applies, courts assess the participant’s knowledge of the dangerous condition against the background of his or her skill and experience.  If the moving party satisfies its burden to show that a party assumed the risk, the non-moving party is then required to show that the party unreasonably enhances the danger or created conditions which were unique compared to those inherent in the activity.

The Court looked to both Fritz’s and Walden’s testimony to determine whether Fritz set forth a genuine issue of material fact.  The record established that Fritz was a motocross expert with several years of experience on different racetracks, including the Walden racetrack.  Fritz was aware that holes develop on a racetrack but testified that the dirt used to fill in the hole was different than anything he had seen before.  Walden provided testimony of several club members who collectively testified that the dirt used in repairing the hole came from the pits on the track’s property and that the conditions of the track change every five to ten minutes.  Walden’s expert witness further echoed the club members’ testimony, explaining that motocross riders consistently encounter changing conditions that are unavoidable.  The Court held that such testimony was sufficient to satisfy Walden’s burden.

Since Walden satisfied its burden to show that the non-moving party assumed the risk, Fritz then had to demonstrate that Walden unreasonably enhanced the danger or created a condition above those inherent in the activity.  Fritz argued that because of the location of the hazard, he would not have been able to see the hazard without driving back onto the track.  As such, Fritz explained that he had to “feel out” the track on a second lap to determine what the issue is.  The Court held that it was clear Fritz was aware of an unusual condition on the track, but nevertheless continued with his activity.  Therefore, Fritz assumed the risk of riding on a hazardous track.

The Court held that Fritz did not raise an issue of material fact as to whether Walden concealed or unreasonably increased the risks to which Fritz was exposed.  As such, the Court reversed the lower court’s order and granted Walden’s motion for summary judgment.

The “Plain, Ordinary Meaning” of an Automobile Liability Insurance Policy Determines Denial of UIM Benefits Sought by an Injured Pedestrian

In Silva v. Selective Fire and Casualty Insurance Company, 2023 N.J. Super. Unpub. LEXIS 618 (App. Div. April 24, 2023), the New Jersey Appellate Division seized yet another opportunity to give an automobile liability insurance policy its plain meaning where the policy at issue contained clear provisions and definitions for coverage.

Edwin Silva (hereafter “Plaintiff”) was working for a landscaping company that used company vehicles insured by Selective Fire and Casualty Insurance Company (hereafter “Defendant”). On the date of the incident at issue in this case, Plaintiff traveled to a job site in a company vehicle, parked the vehicle, unloaded a leaf blower from the rear of the vehicle and set it down on the roadway approximately two steps from the curb. Plaintiff bent down to start the leaf blower before strapping it on his back when he was suddenly struck by a passing vehicle.

Plaintiff settled with the tortfeasor-driver, but then sought additional underinsured motorist (UIM) coverage from Defendant for his injuries. Defendant denied coverage because it determined that Plaintiff was not occupying the insured vehicle at the time of the incident and the policy only afforded coverage to individuals sustaining bodily injuries while “occupying a covered auto.” “Occupying” was defined in the policy as being “in, upon, getting in, on, out or off of the covered auto…” Following limited discovery, Defendant moved for summary judgment arguing that Plaintiff’s injuries were not covered under the policy. Plaintiff argued in reply that a jury question remained, and it could be determined that he was an occupant of the vehicle if there was a substantial nexus between his proximity to the vehicle and the incident. The trial court denied Defendant’s motion for summary judgment and further discovery ensued.

Following additional depositions, Defendant moved for reconsideration arguing that even when viewing the facts favorably to Plaintiff, Plaintiff was not in the vehicle, had closed the vehicle’s door, had removed equipment from the vehicle, had stepped away from the vehicle, was no longer touching the vehicle and was ready to begin working away from the vehicle. The trial court agreed with Defendant and granted the motion for reconsideration finding “the fact that there was a close proximity to the vehicle, in and of itself, does not carry the day…” Plaintiff was not using the truck for any purpose at the time of the accident and his departure from the vehicle was not momentary or unanticipated, which the court believed was critical to its analysis.

Plaintiff appealed arguing that issues of fact still remained as to whether his proximity to the vehicle was sufficient to classify him as an occupant and as to whether he was an occupant because he was “alighting from or using the vehicle” when the accident occurred.

In affirming the trial court’s decision to grant Defendant’s motion for reconsideration, the Appellate Division began by affirming the long-standing concept that insurance policies are given “their plain, ordinary meaning” and that, when clear, these policies should be interpreted as written. While personal injury protection (PIP) benefits are available under all auto liability policies in New Jersey, it is the plaintiff’s burden to “establish a substantial nexus between the insured vehicle and the injury sustained.” Specifically, the Court noted that “mere proximity to a covered vehicle is insufficient to establish entitlement to coverage.”

The Court ultimately determined that the facts presented were insufficient to establish entitlement to coverage under this policy. Plaintiff’s incident was unlike situations where courts have found that pedestrians were occupying vehicles for the purpose of obtaining benefits, such as where water was being added to a vehicle’s radiator, a vehicle was actively being loaded, a pedestrian was leaning on a vehicle that was subject to a hit and run or where a vehicle was stopped momentarily to help a fellow motorist. Instead, the instant case was more similar to the Appellate Division’s decision in Thompson v. James, 400 N.J. Super. 286 (App. Div. 2008), where a plaintiff walked away from an insured vehicle while it was being fueled when that plaintiff was suddenly struck by a different vehicle. There, the Court found that departure from the vehicle was unrelated to the reason for the stop and was not brief enough for the plaintiff to have been considered a continuous occupant of the insured vehicle.

Finding that Plaintiff was not occupying the vehicle at the time he sustained his injuries, the Court affirmed the trial court’s decision to grant Defendant’s motion for reconsideration and to deny Plaintiff coverage under the policy as having been injured as an occupant of an insured auto. In so ruling, the Court adhered to New Jersey precedent calling for a clearly written automobile liability insurance policy’s plain meaning to govern in coverage disputes.

The Supreme Court of Pennsylvania Upholds the Household Vehicle Exclusion in an Underinsured Motorist Policy

The Supreme Court of Pennsylvania, in a recent opinion, continued to reject the view that household vehicle exclusions are ipso facto unenforceable. In Erie Ins. Exch. v. Mione, 289 A.3d 524 (Pa. 2023), Albert Mione was injured after being hit by an underinsured vehicle while riding his motorcycle. That vehicle’s driver paid Mione the limits of the policy covering the subject vehicle, but Mione still sought payment through additional coverage. Mione’s motorcycle was insured through Progressive Insurance, but he previously waived underinsured coverage (“UIM”) under that policy prior to the accident in this case. However, Mione and his wife jointly owned a car insured by Erie Insurance. Their daughter lived with them and also owned a car insured by Erie. Both Erie policies included UIM coverage and so Mione sought to recover UIM benefits under those polices.

Despite Mione’s attempts, Erie denied the claims citing the fact that both policies contained household vehicle exclusions. These exclusions state that UIM coverage is not available under the applicable policy for injuries sustained while operating a household vehicle not listed on the policy under which benefits were sought. Erie denied coverage because Mione was riding his motorcycle at the time which was not listed on either Erie policy.

Erie filed a complaint in the Lehigh County Court of Common Pleas seeking a declaratory judgment that it did not have to pay the UIM benefits pursuant to this exclusion. The trial court granted Erie’s motion for judgment on the pleadings citing to Pennsylvania Supreme Court precedent with facts nearly identical to those presented in the instant case. In Eichelman v. Nationwide Insurance Co., 551 Pa. 558 (1998), a person was also injured while riding his motorcycle after being struck by an underinsured driver. The motorcyclist also sought UIM coverage under his parent’s policy as a resident relative since he waived UIM coverage in his motorcycle policy. The UIM carrier denied coverage based upon the household vehicle exclusion, which was ultimately upheld through a series of appeals.

Mione appealed the trial court’s ruling, but the Superior Court upheld the trial court’s ruling. This prompted further appeal to the Supreme Court of Pennsylvania. There, Mione argued that Gallagher v. GEICO Indemnity Co., 650 Pa. 600 (2019) overruled Eichelman. The court dissected both cases and ultimately disagreed with Mione and upheld the trial court’s original decision. Gallagher also involved a person being injured by an underinsured driver while riding a motorcycle. The motorcyclist had UIM coverage with GEICO which also insured two automobiles owned by the injured party with UIM coverage. GEICO paid the motorcyclist UIM coverage but denied additional UIM coverage based on the household vehicle exclusion. The court in Gallagher overruled GEICO’s denial holding that the denial was an attempt to skirt the Motor Vehicle Financial Responsibility Law’s (“MVFRL”) waiving of stacking requirements. Stacking of coverage is allowed unless the insurer specifically waives stacking. The motorcyclist in Gallagher did not waive stacking.

The Supreme Court distinguished Gallagher because Mione did not have UIM coverage on his motorcycle, which meant that the stacking and waiver issues in Gallagher was not relevant in the instant case. Therefore, Gallagher did not undermine Eichelman as applied to the subject facts. The Court upheld Eichelman and upheld the lower court’s ruling in favor of Erie that household vehicle exclusions are not ipso facto unenforceable. The Court’s opinion included a scenario where a person could waive more expensive UIM coverage for a motorcycle knowing the person would be covered by more affordable coverage under a house automobile policy. This would ultimately undermine the cost-containment rationale of the MVFRL.

The Supreme Court of New York Relieves an Insurer of its Duty to Defend and Indemnify for an Occurrence Outside of Defined Coverage

The Supreme Court of New York, New York County recently had occasion to interpret the terms of an insurance policy and in doing so, ordered that an insurance company was not responsible for defending and indemnifying an insured under the terms of the subject policy.

In MIC Gen. Ins. Corp. v. Rashid, 2023 NYLJ LEXIS 654 (Mar. 6, 2023), Plaintiff, MIC General Insurance Corp. (hereafter “Plaintiff”) sought a declaratory judgment decreeing that it was not responsible to defend and indemnify Defendants, Rezia Rashid and Nawroz Zulfikar (hereafter “Defendants”) as a result of a slip and fall incident involving a third party on Defendants’ property. That third party, Ethel Cardoba, slipped and fell on a sidewalk outside of an insured multi-family residence that Defendants believed to be an “insured location” under the terms of their policy with Plaintiff.

The policy issued by Plaintiff provided coverage for “occurrences” to which “coverage applies,” which included bodily injuries suffered at an “insured location.” The policy’s liability coverage section failed to elaborate as to which occurrences were covered and whether coverage would apply to “residential premises” as one of many types of “insured locations” enumerated in the policy definitions.

Plaintiff filed an unopposed Motion for Default Judgment, which asked the Court to determine that Plaintiff had no responsibility to provide defense and indemnification to Defendants in the underlying personal injury matter brought by Cardoba. In support of the Motion, Plaintiff advanced two arguments. First, Plaintiff argued that the underlying personal injury action is outside the scope of the policy’s coverage. However, the Court disagreed with this argument because the policy expressly stated that Plaintiff would cover the costs of a defense and judgment should suit be brought against an insured for damages because of bodily injury “caused by an ‘occurrence’ to which this coverage applies …” The court specifically found that the policy’s liability coverage section did not limit coverage to “insured locations” or “residential premises” and that while it was reasonable to infer that the sidewalk at issue would not be an “insured location” or a “residential premises,” the absence of an express limitation to coverage under these terms ruled the interpretation of the policy. The Court believed that to make such an inference would be to improperly add meaning to the policy’s explicit language.

Despite the Court rejecting this first argument, it ultimately sided with Plaintiff and held that Plaintiff was not obligated to defend and indemnify Defendants. In so ruling, the Court analyzed the language of the policy as applied to the facts available. In its analysis, the Court found that an “insured location” included one of many types of premises, one of which covered “residential premises.” The policy at issue was purchased by Defendants to cover a three-family dwelling consisting of three separate apartments. However, the policy defined a covered “residential premises” as a “one-family or two-family dwelling.” Given that the subject premises was not a one-family or two-family dwelling, the Court found that it did not qualify as a “residential premises” under the policy’s definition and therefore did not qualify as an “insured location.”

Thus, the denial of defense and indemnification was proper given this express exclusion of Defendants’ premises. In so ruling, the Court refused to give additional meaning to the express terms of an insurance policy and instead, accepted Plaintiff’s argument relying on the explicit exclusion of coverage for the property at issue. The Court also reaffirmed the long-standing principle in New York that the duty to defend and indemnify does not attach simply where a policy is held by an insured and where the insured seeks coverage for incidents beyond the scope of the policy.

NJ Adopts Final Regulations to Implement New Jersey’s Landmark Environmental Justice (EJ) Law

On April 17, 2023 (the first day of Earth Week), Governor Phil Murphy announced the final adoption of regulations to implement New Jersey’s landmark Environmental Justice (EJ) Law. The EJ Law and implementing rules are the first in the nation aimed at reducing pollution in historically overburdened communities and communities of color. Under the EJ Rules, when proposing to locate certain pollution-generating facilities in an overburdened community, an applicant must prepare an environmental justice impact statement and engage directly with members of their proposed host community by hosting a public hearing, collect all public comments and respond to them in writing, among other requirements.

Please contact me at afox@capehart.com if you are interested in more information or need legal assistance.

The New Jersey Appellate Division Has Occasion to Determine the Liability of the Owner of a Vacant Lot for Injuries Sustained on the Lot’s Abutting Sidewalk

On January 4, 2023, the New Jersey Appellate Division rendered an interesting, yet unpublished opinion related to the issue of liability for a sidewalk abutting a vacant lot. In Padilla v. An, 2023 N.J. Super. Unpub. LEXIS 14 (App. Div. January 4, 2023) Plaintiff, Alejandra Padilla, slipped and fell on the sidewalk abutting a vacant lot in Camden owned by the Defendants. As a result of the fall, Plaintiff allegedly suffered significant bodily injuries resulting in permanent disability and limiting her ability to work.

Plaintiff, in a subsequently filed lawsuit, alleged that the Defendants were negligent for failing to maintain the sidewalk abutting their property, thereby reportedly creating an unreasonable risk to pedestrians. At the conclusion of discovery, the Trial Court granted Defendants’ Motion for Summary Judgment, finding that the Defendants did not owe a duty to Plaintiff.

Defendants’ motion relied upon the matter of Abraham v. Gupta, 281 N.J. Super. 81 (App. Div. 1995) and argued that pursuant to that precedent they had no duty to maintain the sidewalk in question because it abutted a vacant lot that was not generating any income. In adhering to its long-standing precedent, the Trial Court also found Plaintiff’s argument, that Defendants “could” have generated income by either developing or selling the property to be unpersuasive. While Plaintiff attempted to rely upon both Gray v. Caldwell Wood Prods., Inc., 425 N.J. Super. 496 (App. Div. 2012) and Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981), in support of her position, the Trial Court distinguished these oft-cited opinions, noting that Plaintiff’s accident in Gray took place within the bound of a property with a vacant commercial building, which could have generated income. Though Stewart does stand for the proposition that a commercial property owner does have a duty to maintain a sidewalk abutting a commercial property, the Trial Court noted that Abraham found that duty did not apply where the property could not generate income.

On appeal, Plaintiff argued that the Trial Court erroneously relied upon Abraham, and rather, should have applied the standards and reasoning set forth in Stewart. Specifically, Plaintiff argued that Abraham far too narrowly misconstrued the holding in Stewart, which is a long-standing precedent of the New Jersey Supreme Court. Plaintiff stressed that Gray, which specifically involved a sidewalk abutting a vacant building, was applicable given that the property “was capable of generating income by operation of a commercial activity on it,” and Defendants “bought then sold the property for commercial profit.” Gray, 425 N.J. Super. at 498-503.

Further, Plaintiff relied upon a municipal ordinance of the City of Camden which required Defendants to maintain a sidewalk abutting their property and argued that pursuant to the Appellate Division’s opinion in Luchejko v. City of Hoboken, 414 N.J. Super. 302, 319 (App. Div. 2010), a jury should have been given the opportunity to determine whether Defendants had a duty to maintain the sidewalk pursuant to that ordinance.

Irrespective of Plaintiff’s arguments on appeal, the New Jersey Appellate Division affirmed “substantially for the reasons set forth by the trial judge in his oral decision.” The Appellate Division did make a point to note that:

Abraham remains good law that an owner of a non-income producing vacant lot owes no duty to the public to maintain the lot’s abutting sidewalk in a safe condition. Plaintiff has pointed to no reason why we should deviate from that ruling, which was rendered almost 3 decades ago. Plaintiff’s reliance upon the municipal ordinance stating that landowners are responsible for maintaining their abutting sidewalks is misplaced.

Slip. Op. at 4.

The Appellate Division further explained that in Luchejko, the New Jersey Supreme Court held that a private citizen’s breach of an ordinance did not create a right of action to an individual citizen, noting that “the most conspicuous cases of this sort are those that deny liability to private suit for violation of the duty imposed by ordinance upon abutting property owners to maintain sidewalk pavements or to remove ice and snow from the war.”  Luchejko, 207 N.J. at 200.

The Court held that in this matter Plaintiff failed to demonstrate that the Defendants violated the municipal ordinance and that “even if they had, a violation could not provide the basis for liability in the sidewalk slip and fall case.”  Slip. Op. at 5. “Simply put, the ordinance does not impose a duty on defendants to protect the plaintiff from a sidewalk’s dangerous condition.  See also Robinson v. Vivirito, 217 N.J. 199, 208 (2014) (holding whether a party owes a duty to another party is a question of law for the court to decide, not the factfinder.)”  Slip. Op. at 5.

Accordingly, this unpublished opinion is a useful continuing discussion of sidewalk liability in the State of New Jersey. The Court’s decision is specifically useful in outlining the defense of vacant property owners facing claims from pedestrians sustaining injuries on abutting sidewalks of those non-revenue generating properties.

Pennsylvania’s Ongoing Snow Storm Precedent is Applied to Snow and Ice Falling from Rooftops

The Superior Court of Pennsylvania recently reaffirmed the scope of the duty owed by both a landowner and snow removal contractor during an ongoing snow storm. In Sylvester v. Alvin Ziegler Snow Removal, 2022 Pa. Super. Unpub. LEXIS 1524 (Pa. Super. 2022), the plaintiff was injured by snow and ice which fell from the roof of a building as he was leaving work at the Tobyhanna Army Depot. After leaving his home at 6 a.m. on the morning of the incident and commuting for 45 minutes, the plaintiff did not encounter any snow on the roadways. Plaintiff further had no difficulty walking from his truck into work in the light snow that had accumulated on the front sidewalks.

During the workday, heavy snow piled up on the rooftops of plaintiff’s workplace and on the ground below. At the end of his shift at 5 p.m., plaintiff attempted to leave the building, but was not able to open the door more than an inch because it was blocked by snow. He used an ice chopper to push some of the snow out of the way, and after some time was finally able to get the door open enough to exit. When plaintiff exited the building, it was still snowing. The parking area had not been cleared, but the road had been plowed. While plaintiff was descending the three or four steps from the building to the ground, he heard a noise which he knew to be snow falling off the roof. He looked up to see where the noise was coming from, and was struck and knocked down by ice and snow falling from the roof.

Plaintiff testified that he could not say for sure whether there had been snow or ice on the roof before that day’s snowstorm. According to a CompuWeather report, 20 inches of snow fell on the date of the incident, with snowfall occurring from 3:45 a.m. until between 5:30 and 6:30 p.m. In contrast, it had not snowed at all in the week prior to the incident.

At the time of the incident, plaintiff’s employer had a contract with the defendant snow and ice removal contractor. Pursuant to that contract, the defendant was responsible for, among other things, removing snow and ice from the roof surfaces at the depot. Defendant’s owner testified that on the day of the storm, fourteen of his employees worked to remove snow at the depot, which was their only job for the day. However, he did not have sufficient manpower to inspect the roofs of the buildings due to the heavy snow. He testified that he would have needed 250-300 people to adequately clear all of the roof surfaces given the severity of the storm. He began work at 7:00 a.m. and worked approximately eight and a half hours, before sending his employees home, as further attempts to remove the snow from the ground were futile.

Plaintiff subsequently filed a lawsuit, alleging the defendant snow removal contractor was negligent in failing to clear the snow and ice from the roof in a timely manner, thus allowing snow to accumulate for an unreasonable amount of time. Defendant, in a later filed motion for summary judgment, argued that plaintiff’s injury occurred during an ongoing snowstorm, such that a reasonable period of time, within which they were expected to clear the snow and ice, could not have expired. Stated differently, defendant argued it did not owe a duty to plaintiff to clear the snow and ice from the roof during the active storm.

The Court noted that under Pennsylvania law, a plaintiff asserting a negligence claim must establish four elements: (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages. “The mere fact that an accident has occurred does not entitle the injured person to a verdict. A plaintiff must show that the defendant owed a duty of care, and that this duty was breached.”  See Estate of Swift by Swift v. Northeastern Hosp., 456 Pa. Super. 330 (Pa. Super. 1997); Rauch v. Mike-Mayer, 2001 Pa. Super. 270 (Pa. Super. 2001).

In conducting its analysis, the Court cited prior Pennsylvania cases applying the “hills and ridges doctrine” in the context of slip and falls on snow and/or ice located on the ground. Those cases established (1) that there is no absolute duty on an owner or occupier of property to keep his premises free from ice and snow at all times; (2) that an owner or occupier of land is protected from liability for generally slippery conditions resulting from ice and snow where the owner has not permitted the ice and snow to unreasonably accumulate in ridges or elevations; and (3) that a landowner’s duty to remove snow and ice is triggered only “a reasonable time after” the landowner becomes aware of the dangerous conditions created by the snow and ice.  See Hutchison v. Montgomery Ward & Co., 364 Pa. 126 (1950).  More directly applicable was the Court’s prior decision in Collins v. Philadelphia Suburban Development Corporation, 179 A.3d 69 (Pa. Super. 2018), which held that a landowner has no obligation to correct such conditions until a reasonable time after a winter storm has ended.

Here, the Court found that plaintiff suffered an injury during a severe and active snowstorm, which dumped approximately 20 inches of snow. Under these circumstances, it would have been totally unreasonable to require the defendant to clear snow and ice from the roof of the relevant building. Because defendant did not owe a duty to plaintiff to clear snow and ice from the roof of the building during an ongoing storm, plaintiff failed to make out a prima facie case of negligence. This was so even where the defendant was on site all day and aware of the generally prevailing conditions. Thus, the Court affirmed the trial court’s grant of summary judgment in favor of the defendant, dismissing plaintiff’s lawsuit.

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