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Supreme Court of New York Dismisses Suit on Grounds of Lack of Notice and Absence of Proximate Cause

The Supreme Court of New York recently reviewed substantive grounds for summary judgment, such as lack of notice, absence of proximate cause, and improper party inclusion in its opinion and holding in the matter of Kimberly Squire v. City of New York, et al.  In Kimberly Squire, Plaintiff’s Complaint alleged injuries from a trip and fall due to Plaintiff stepping into a hole when she was disembarking a NYC MTA bus in Brooklyn, New York.  Plaintiff filed suit against the City of New York; New York City Transit Authority; and Metropolitan Transportation Authority.

Defendants New York City Transit Authority and Metropolitan Transportation Authority (together, “Transit Defendants”) filed a motion for summary judgment.  These Transit Defendants advanced multiple arguments to support their motion, including that defect identified by Plaintiff (the hole) was not the proximate cause of the accident, that same was not visible from the bus operator’s vantage point, and that Transit Defendants do not own, operate, or maintain the property where Plaintiff fell.  In addition, the Metropolitan Transportation Authority (“MTA”) claimed that it was not a proper party to the suit.  Later, the City of New York filed its own motion for summary judgment and argued lack of notice of the hole and that the City of New York did not create the alleged defect.

In assessing these arguments, the Court agreed that the MTA was not a proper party to the lawsuit and dismissed Plaintiff’s claims against MTA accordingly.  The Court also found that the New York City Transit Authority oversaw the subject bus and cited precedent holding that the MTA and its subsidiaries must be sued separately and were not responsible for each other’s torts.

As to New York City Transit Authority’s arguments about proximate cause – the Court noted that Transit Defendants were generally not responsible for maintaining bus stops, roadways, curbs, or sidewalks.  Further, the Court noted that a common carrier owed a duty to an alighting passenger to stop where they can disembark safely.  Assessing whether a duty to a plaintiff was breached when the driver stopped requires an analysis of whether the bus driver could have observed the dangerous condition from the driver’s vantage point.

The Court found that evidence in the record includes video and photo evidence which showed that Plaintiff was too far from the alleged hole for it to have caused her fall as she disembarked the bus.  Thus, Transit Defendants’ motion for summary judgment was granted, as evidence showed that the hole was not the proximate cause of Plaintiff’s accident.

Finally, the Court addressed the City of New York’s argument that it lacked notice of the alleged hole.  The Court found that although Plaintiff presented evidence of two permits and inspections for nearby locations, she failed to raise a triable issue of fact because the evidence presented did not relate to the specific defect.  On the contrary, the Court held that the City of New York had adequately demonstrated that it did not have prior written notice of the defect.  Accordingly, the Court found that City of New York has articulated a prima facie case that it lacked written notice and, thus, was entitled to summary judgment.  With this, Plaintiff’s claims against all Defendants were dismissed.

New York practitioners are encouraged to review this opinion as a refresher of New York’s standards on summary judgment.  Same opinion is also instructive as to standards of alleging breaches of common carriers’ duties (to an alighting passenger to stop at a place where the passenger may safely disembark and leave the area).

Pennsylvania Superior Court Interprets “Absolute Auto Exclusion” Against Insurer Due to Ambiguity

In Chris Eldredge Containers, LLC v. Crum & Foster Specialty Insurance Company, et al., the Superior Court of Pennsylvania addressed the obligation of the Defendant insurers to defend and indemnify their insured, Eldredge Containers, in connection with a personal injury lawsuit.

The underlying personal injury lawsuit arose from an incident in which an Eldredge Containers employee, driving an Ottawa Terminal Tractor, backed into a stationary service truck owned by Safety-Kleen Systems, Inc. (“Safety-Kleen”) and occupied by Safety-Kleen’s employee, Craig Logan (“Logan”).  As a result, Logan filed suit against Eldredge Containers, alleging he sustained injuries from the collision.

Eldredge Containers sought defense and indemnity from, inter alia, the insurance carriers Crum & Foster (“C&F”) and National Union.  Both carriers disclaimed coverage.  Thereafter, Eldredge Containers filed a declaratory judgment action seeking a declaration that the insurers were required to provide it with indemnification and defense in connection with Logan’s underlying personal injury  lawsuit.

In the declaratory judgment action, C&F, Eldredge Containers’ general liability carrier, filed a motion for judgment on the pleadings.  Therein, C&F argued that while it had issued a Commercial General Liability policy that provided coverage for damages arising from bodily injury, that policy contained an “Absolute Auto Exclusion.”  That exclusion provided that there was no coverage for “bodily injury…arising out of or resulting from the ownership, maintenance, use[,] or entrustment to others of any…auto…”  C&F argued that the Absolute Auto Exclusion was triggered because Logan’s Safety-Kleen service truck was an “auto” under the definition of the policy and, therefore, Logan’s alleged injuries arose out of the ownership or use of an “auto.”  National Union, Eldredge Containers’ excess carrier, similarly filed a motion for judgment on the pleadings, arguing that it had no duty to defend or indemnify Eldredge Containers absent a corresponding duty under an underlying policy.

The trial court granted C&F and National Union’s motions for judgment on the pleadings, dismissing Eldredge Containers’ declaratory judgment action.  Thereafter, Eldredge Containers appealed.  The appellate court noted that “[t]his appeal involves the interpretation of an insurance policy, which ‘is a question of law that we will review de novo.’”  The court then cited various cases from the Commonwealth of Pennsylvania to support the propositions (1) that when a coverage clause is ambiguous, defined as being “reasonably susceptible of different constructions and capable of being understood in more than one sense,” the clause is to be “interpreted broadly so as to afford the greatest possible protection to the insured;” and (2) that exceptions to an insurer’s general liability are to be interpreted narrowly against the insurer.

Applying the above-referenced rules, the appellate court found that the C&F Commercial General Liability policy’s Absolute Auto Exclusion was ambiguous because it did not specify a causation standard or identify whose ownership or use of an auto triggers the exclusion.  The court cited prior Pennsylvania decisions which found the phrase “arising out of” to be ambiguous, such that it must be strictly construed against the insurer to exclude only those injuries that are proximately caused by the auto.  Here, the court noted that in the underlying personal injury action, it was the Ottawa Terminal Tractor, a non-auto, and not the Safety-Kleen truck, that was the proximate cause of Logan’s injuries.

The appellate court similarly found that the ownership clause in the Absolute Auto Exclusion was ambiguous, because it did not specify whose “ownership, maintenance, use[,] or entrustment to others of any…auto” triggers the exclusion.  The court thus strictly construed this clause against the insurer, finding that the exclusion was only triggered by the insured’s (Eldredge Containers’) “ownership, maintenance, use[,] or entrustment to others of” an auto.  In this case, the only “auto” at issue was Logan’s Safety-Kleen truck, which Eldredge Containers did not own, maintain, use, or entrust to others.  The Absolute Auto Exclusion thus was not triggered.

The appellate court concluded that because the Absolute Auto Exclusion was not triggered, C&F and National Union both had a duty to indemnify and defend Eldredge Containers in the underlying suit.  The court thus reversed the trial court’s decision and remanded the case for further proceedings consistent with its opinion.

Takeaway: Pennsylvania insurers should be aware that Pennsylvania law favors the broad interpretation of ambiguous coverage clauses to provide the greatest amount of protection to policyholders, while narrowly interpreting coverage exceptions and exclusions.

Appellate Division Opinion Reinforces Importance of Comparative Analysis in Context of Causation and Pre-Existing Conditions

By: Courtney Todaro, Law Clerk
Edited By: Nuo (Norman) Jiang, Esq.

In its holding and opinion in Zavis v. NJM Ins. Co., the Appellate Division of the Superior Court of New Jersey clarified standards for an injured Plaintiff to demonstrate that her injuries were caused by a motor vehicle accident.

On February 1, 2019, then-74-year old Charlotte Zavis (hereafter “Plaintiff”) allegedly sustained personal injuries as a front passenger in a motor vehicle accident.  Plaintiff alleged she sustained injuries to her shoulders, neck, and back because of the accident.  Notably, Plaintiff did not assert a claim of aggravation or exacerbation of any pre-existing injuries.  After settling the third-party case, Plaintiff filed a claim for additional underinsured motorist (UIM) coverage against New Jersey Manufacturers Insurance Company (hereafter “Defendant”).

As part of her diagnosis and treatment, Plaintiff had MRIs taken of her lumbar and cervical spine on April 4, 2019.  According to Plaintiff’s treating expert Dr. Wayne Fleischhaker’s report, Plaintiff sustained herniations of the cervical spine at C3-4 and C5-6, bulging discs at C4-5 and C6-7, and bulging discs in the lumbar spine at L3-4 and L4-5 with lumbar radicular syndrome.  In Dr. Fleischhaker’s treatment and progress notes, he noted that Plaintiff had “cervical disc degeneration, mid-cervical region, [at an] unspecified level.”

Discovery of Plaintiff’s medical history revealed that she had a pre-existing back condition.  Specifically, Plaintiff had undergone at least two prior lumbar MRIs: one in 2000, which revealed diffuse disc bulges at L3-4 and L4-5 and “multilevel loss of the normal T2 disc signal consistent with multilevel degenerative disc disease;” and another in 2016 after a slip and fall injury which revealed lumbar disc bulges at L3-4 and L4-5.

In his May 14, 2023 report, Dr. Fleischhaker opined that Plaintiff “suffered permanent injuries to her cervical and lumbar spines and an aggravation of pre-existing asymptomatic degenerative changes in the spine” due to the 2019 accident.  Conspicuously, the expert did not provide an explanation of what parts of the spine the “degenerative changes” affected, or perform a comparative analysis of Plaintiff’s pre- and post-accident conditions.

Defendant moved for summary judgment, arguing that Plaintiff could not establish negligence due to the pre-existing condition in her spine, and could not prove causation without a comparative analysis.  Plaintiff opposed the motion, relying on Davidson v. Slater, 189 N.J. 166 (2007), to claim that no comparative analysis was required because she did not assert aggravation or exacerbation of a pre-existing injury.  The Superior Court was not convinced by Plaintiff’s argument and granted Defendant’s motion for summary judgment.  The Superior Court agreed with Defendant and did not find causation, and highlighted Plaintiff’s medical history and Plaintiff’s own expert report of her pre-existing and degenerative conditions as support.

In affirming the Superior Court’s granting of Defendant’s motion for summary judgment, the Appellate Division explained that while a plaintiff is not required to produce a comparative analysis when they do not claim aggravation of pre-existing injuries, a defendant “has the right to raise the issue of prior injuries and seek discovery on them.”  In this case, Defendant utilized this right to seek discovery and argued that Plaintiff could not prove causation.  Reiterating the standard established in Bowe v. N.J. Mfrs. Ins. Co., 367 N.J. Super. 128, 138 (App. Div. 2004), the Appellate Division asserted that Plaintiff had the burden of proving her injuries were “causally linked to either (1) an aggravation of that injury or condition, or (2) a new injury.”  Plaintiff herein could not prove either.  Without a comparative medical analysis, “the jury would be left to speculate” about the cause of Plaintiff’s injuries and effect of the accident.

Judge Bishop-Thompson partially dissented from the majority opinion.  While she concurred with the majority’s conclusion that a comparative analysis was necessary for Plaintiff’s lumbar injuries, Judge Bishop-Thompson disagreed from the majority’s requiring Plaintiff present a comparative analysis for the alleged “new” cervical spine injury.  She reasoned that no pre-existing condition affecting Plaintiff’s cervical spine was alleged, the previous MRIs were only of Plaintiff’s lumbar spine, and there was no specific record of a cervical degenerative condition prior to the accident, only multilevel degenerative disc disease.

Takeaway: New Jersey practitioners are advised to review this case as a reminder that causation is an essential element of any negligence case.  Even if plaintiffs do not raise the issue of aggravation or exacerbation of pre-existing injuries, defendants do have a right to raise prior injuries as a defense and are entitled to discovery into same.  As such, a comparative analysis remains the best method to solidify a causal link between a new accident and new symptoms, especially if juries are put in position to speculate on causation.

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Courtney Todaro is one of the firm’s 2025 Summer Law Clerks. She is a rising 3L at the Drexel University Thomas R. Kline School of Law in Philadelphia, PA. After serving with AmeriCorps, Courtney joined the law school as a Public Interest Scholar and has continued to fuel her passion for teaching by serving as a Dean Scholar for both Civil Procedure and Property. Last summer, she interned with the New Jersey Attorney General’s Office in the Education and Higher Education Division in Trenton, NJ. She also completed a project internship with the Cheshire Law Group, where she assisted with revising the fourth edition of Stern’s Pennsylvania Nonprofit Corporation Law Treatise. This past semester Courtney served as an intern at the Education Law Center in Philadelphia, PA. She was recently selected to participate in the Center for Public Research and Leadership’s Structural Change in Education Practicum next semester at Columbia Law School. After graduation, Courtney plans to pursue a career in School and Special Education Law.

Sovereign Immunity Bars Suit Against The College of New Jersey in a Pennsylvania Court of Common Pleas Decision

A plaintiff unsuccessfully attempted to sue The College of New Jersey (“TCNJ”) in a defamation and slander lawsuit based upon alleged actions by one of its employees.

The case arose out of comments allegedly made by Defendant Tabitha Dell’Angelo about Plaintiff Timothy Daly at a February 13, 2024, Central Bucks Action Meeting and a February 25, 2024, Op-Ed on the Bucks County Beacon website. Plaintiff filed a Complaint in the Bucks County Court of Common Pleas of Pennsylvania alleging that Defendant Dell’Angelo made the comments within the course and scope of her employment with The College of New Jersey making TCNJ vicariously liable for Defendant Dell’Angelo’s actions by the doctrine of respondeat superior.

TCNJ, represented by Capehart & Scatchard, P.A., filed Preliminary Objections to Plaintiff’s Complaint, arguing that the Bucks County Court of Common Pleas lacked jurisdiction because TCNJ was entitled to sovereign immunity, as it was/is an arm of the State of New Jersey. TCNJ also argued that it was entitled to all the privileges and immunities of the New Jersey Tort Claims Act N.J.S.A. 59:1-1 et seq. As such, Plaintiff’s Complaint must be dismissed because Plaintiff failed to file a notice of tort claim pursuant to N.J.S.A. 59:8-8.

Sovereign immunity bars a suit against a state in another state absent consent. Simply put, a person cannot sue the State of New Jersey in a Pennsylvania state court absent consent by New Jersey. The question then turned to whether TCNJ was considered the “State of New Jersey” to invoke sovereign immunity.

In Marshall v. SEPTA, 300 A.3d 537 (Pa. Commw. 2023) the Commonwealth Court of Pennsylvania dismissed an action against New Jersey Transit in Pennsylvania based on sovereign immunity. The Marshall court held that New Jersey Transit was an arm of the State of New Jersey and cannot be sued in another state absent consent. The District of New Jersey has also held that The College of New Jersey is an arm of the State of New Jersey. See Messina v. Coll. of N.J., 624 F. Supp. 3d 523, 529 (D.N.J. 2022). These prior decisions support that the Bucks County Court of Common Pleas lacked jurisdiction over TCNJ.

TCNJ also argued that Plaintiff failed to file a notice of tort claim. N.J.S.A. 59:8-8 bars a claimant from instituting a claim unless the claimant provides notice to the public entity within 90 days of the accrual of the claim. N.J.S.A. 59:1-3 defines the State as a public entity. TCNJ additionally argued that pursuant to Flamer v. N.J. Transit Bus Operations, 414 Pa. Super. 350 (Pa. Super. 1992), Pennsylvania courts are required to apply the immunities and provisions of the New Jersey Tort Claims Act because they are not repugnant to Pennsylvania public policy. Therefore, it was found that Plaintiff was required to notify TCNJ of the potential claim within 90 days of February 13, 2024, and February 25, 2024. Plaintiff simply never filed a timely notice as required.

Ultimately, the Bucks County Court of Common Pleas sustained TCNJ’s Preliminary Objections and dismissed Plaintiff’s Complaint without prejudice and allowed Plaintiff 20 days to file an Amended Complaint. Plaintiff filed an Amended Complaint renewing claims against Defendant Dell’Angelo, but did not bring any new or amended claims against TCNJ. This holding protected the rights of the State of New Jersey by reenforcing the doctrine of sovereign immunity.

Takeaway: Practitioners defending the State of New Jersey and connected public entities in civil matters in Pennsylvania should remain aware of the defenses under sovereign immunity to which the State of New Jersey is entitled; but care must be placed, and precedent should be cited, in arguing whether a public entity is considered the “State.” The NJ Tort Claims Act also provides the State of New Jersey with another layer of procedural protection and defense practitioners should remain aware of the State’s right to enforce stringent filing and timing requirements imposed upon plaintiffs and claimants.

Supreme Court of New Jersey Permitted Seeking Contribution From Non-Party Out-of-State Joint Tortfeasors Under New Jersey Joint Tortfeasor Contribution Law

In its holding and opinion in Est. of Spill v. Markovitz, (A-34-23), 2025 N.J. LEXIS 211 (March 11, 2025), the Supreme Court of New Jersey contemplated whether a jury may allocate fault to an out-of-state tortfeasor not subject to personal jurisdiction in New Jersey.

The underlying malpractice and wrongful death matter stems from medical care and surgery received by deceased Crystal Walcott Spill (“Spill”).  The Estate of Spill (“Plaintiff”) alleges that up to the time of her passing, Spill suffered from lupus and was under the care of Dr. Jenny T. Diep, M.D., a NY rheumatologist.  Concurrently, Spill also received unrelated care from Dr. Jacob E. Markovitz, M.D., a NJ gynecologist.  In the course of his care, Dr. Markovitz found low-grade squamous intraepithelial lesions by colonoscopy and suggested a loop electrosurgical excision procedure (“LEEP” or, i.e. “the surgery”) to remove the abnormal tissue, which Spill scheduled for February 16, 2018.

Prior to the scheduled LEEP, Spill had an appointment with rheumatologist Dr. Diep, wherein laboratory testing revealed elevated creatinine levels and high blood pressure.  In response, Dr. Diep doubled Spill’s blood pressure medication and recommended Spill to see a nephrologist.  On February 15, 2018, one day before her scheduled LEEP, Spill had an initial visit with Dr. Holly M. Koncicki, M.D., a NY nephrologist.  Dr. Koncicki performed additional tests but did not receive the results or have an opportunity to discuss with Dr. Diep before Spill’s LEEP.  Spill went ahead with the LEEP on February 16, 2018, performed by Dr. Markovitz, in which during the application of anesthesia, Spill suffered a significant cardiac event, and sadly passed away later that day.  On February 17, 2018, Dr. Koncicki’s records showed that Spill’s test results, which revealed critically elevated creatinine and potassium levels, had been available on the evening of her death.

Suit was filed by Estate of Spill (“Plaintiff”) in Superior Court against the group of doctors and practices involved in Spill’s care and surgery, including Dr. Koncicki, Dr. Markovitz, and the anesthesiologist, and their practices, and others (“Doctor Defendants”) on a theory that they negligently proceeded with the LEEP without waiting for Dr. Koncicki’s test results.  Saliently and significantly, Plaintiff never once asserted claims against Dr. Diep as a Defendant through the pendency of her lawsuit.  Notwithstanding, the Doctor Defendants moved to allocate fault against Dr. Diep, and also filed a third-party complaint against Dr. Diep, and produced at least one expert report highlighting Dr. Diep’s possible negligence in her care of Spill; while Dr. Diep moved to dismiss the third-party complaint for lack of personal jurisdiction.

Superior Court sided with Dr. Diep, and dismissed the third-party complaint against Dr. Diep AND denied Doctor Defendants’ motion to include Dr. Diep on the verdict form for apportionment of fault.  Superior Court found no precedent to support inclusion of Dr. Diep on the verdict form, as Dr. Diep was an alleged joint tortfeasor but was also a non-party, over whom the court did not have personal jurisdiction.  The Appellate Division affirmed Superior Court, and held that a New Jersey court does not have personal jurisdiction over Dr. Diep as an out-of-state individual, and that Dr. Diep is neither a party nor a tortfeasor, and that there should not be an allocation as to such an individual.

Before the Supreme Court, the Doctor Defendants argued that the court’s lack of jurisdiction over Dr. Diep should not deprive them of the jury’s apportionment of fault as to Dr. Diep’s responsibility for harm to Spill.  Doctor Defendants insisted that Dr. Diep’s absence from the verdict sheet would lead to an unjust imposition of liability because all responsible tortfeasors will not be included in the jury’s apportionment of fault.

In opposition, Estate of Spill (“Plaintiff”) contended that the Comparative Negligence Act (“CNA”) forbids apportionment of fault to non-party Dr. Diep, and maintained that there is no authority to support Doctor Defendants’ position.  Plaintiff further argued Doctor Defendants mistakenly relied on the Joint Tortfeasor Contribution Law (“JTCL”) because the CNA is the sole authority on jury allocation of comparative fault percentages among multiple parties.  Plaintiff argued for a traditional contribution-after-judgment claim to address Doctor Defendants’ allegation of Dr. Diep’s fault.

Having these arguments, the Supreme Court affirmed but modified Appellate Division’s Judgment, and held that an individual outside the reach of New Jersey’s jurisdiction is not a party within the definition of the CNA  for purposes of allocation, such an individual may still be a joint tortfeasor for purposes of seeking contribution under the JTCL.

All parties agree that the Superior Court lacked personal jurisdiction over Dr. Diep in this matter.  Under the prevailing policy of not letting the procedural status of a joint tortfeasor affect substantive right of contribution as articulated in Mejia v. Quest Diagnostics, Inc., 241 N.J. 360, 371 (2020), the Supreme Court’s reasoning included a thorough examinations of the CNA and the JTCL and found that they differ in that the CNA allows allocation of fault during a trial only to a “party” or “parties,” whereas the JTCL allows “joint tortfeasors” to seek contribution after a trial from other “persons” alleged to be “liable in tort for the same injury.”

The Supreme Court also examined a line of relevant cases including Young v. Latta, 123 N.J. 584  (1991), which held that so long as a non-settling defendant provides the plaintiff with fair and timely notice that it intends to assert the liability of a settling defendant, cross-claims are not required to seek an allocation against that settling defendant.  Even though the language of the CNA did not provide for apportionment of fault to settling tortfeasors, the court recognized that a defendant who settles and is dismissed from the action remains a party to the case for the purpose of determining the non-settling defendant’s percentage of fault.

The Supreme Court also examined Kranz v. Schuss, 447 N.J. Super. 168 (App. Div. 2016), in which a plaintiff launched two parallel suits in NJ and NY to recover for the same harm, but the NY defendants settled, whereas the NJ defendants did not; the court, having found no prejudice due to the relatedness in the two actions, permitted the non-settled NJ defendants to obtain credit for the settled NY defendants for the amount of fault found by jury.

The Court only found guidance in Young and Kranz, but not precedent, and differentiated these cases from the Spill matter at bar, in that Young and Kranz involved apportioning fault to settled defendants, whereas Spill matter involved apportioning fault to a non-party tortfeasor with no settlement.

Turning back to Spill, the Supreme Court emphasized that Dr. Diep was never made a party to the case within definition of the CNA, and that Plaintiff deliberately chose not to pursue action against Dr. Diep in NJ or NY – and cannot be compelled to pursue action.  To remedy the prejudicial hampering effect this would have on the Doctor Defendants’ ability to pursue Dr. Diep for contribution, the Supreme Court noted that the JTCL allows any joint tortfeasor to seek contribution from any other “persons” alleged to be “jointly or severally liable in tort for the same injury,” and which therefore would not bar the Doctor Defendants from independently pursuing Dr. Diep for contribution.

Take-Home Message: NJ civil defense practitioners are encouraged to review this opinion and the authority cited and analyzed therein, with special attention to Court’s breakdown of both the CNA and the JTCL.  Practitioners must remain cognizant that the CNA has a requirement of “party” whereas JTCL has a (more lax) requirement of “person.”  While public policy favors fair apportionment of fault, procedural standing of parties at the outset of the litigation will impact joint tortfeasors’ timing, ability, convenience, and cost in seeking contribution from other joint tortfeasors.

 

Supreme Court of New York Found Property Owner Vicariously Liable by Way of Public Highway Exception for Dangerous Conditions Caused by Third Party Contractor

Co-authored by: Uyen Nguyen, Law Clerk and Alyson L. Knipe, Esq.

In Malka Markowitz v. 420 Kent Ave. LLC, 2024 N.Y. Misc. LEXIS 8327, the Supreme Court of the State of New York, Kings County (“NY Supreme Court”) denied the property owner Defendant’s Motion to Reargue their prior arguments made in their Motion for Summary Judgment.

In the underlying facts, Plaintiff Malka Markowitz brought a personal injury action against Defendants 420 Kent Avenue, LLC., First Service Residential, Inc. (together “420 Kent”) and U.S. Rent-A-Fence (“US Fence”), alleging she sustained injuries on July 5, 2021, from tripping on the square base of a fence on 420 Kent’s property.

In June 2021, Defendants 420 Kent (property owners) contracted US Fence to rent a six-foot chain-link fence to protect against individuals expected to gather near 420 Kent’s property to watch the July 4, 2021 Independence Day fireworks.  US Fence agreed to install the fence on July 2 and remove it by July 5, 2021.  On July 5, 2021, while US Fence was in the process of removing the fence, Plaintiff Markowitz walked into the park adjacent to 420 Kent’s property. She then tripped on a square base of the fence and was injured as a result.

420 Kent and US Fence both moved for Summary Judgment on competing theories of indemnification. The NY Supreme Court denied both Motions for Summary Judgment as to indemnification; however, the Court did grant a branch of US Fence’s Motion on its claim for common-law indemnification, arguing that 420 Kent is liable because they failed to name US Fence as an additional insured on their policy per their agreement.

In a motion to reargue pursuant to C.P.L.R. § 2221(d), the moving party must establish that the Court has overlooked or misapprehended the relevant facts or misapplied the controlling principles of law.

In their Motion to Reargue, 420 Kent asserted that the Court had overlooked that the insurance procurement provision contained in the fence rental agreement between 420 Kent and US Fence was unenforceable as it included the following provision:

“The Customer [420 Kent] shall obtain… the forms and amounts of insurance coverage set forth in this Rental Agreement from an insurance company approved by [US Fence]. Each policy of insurance shall name [US Fence]… as additional insureds… This insurance shall, at a minimum, provide coverage in the event of death, injury, or casualty to property, whenever such shall occur, arising out of, resulting from, or related to the use of Equipment by [420 Kent].”

420 Kent argued that since the agreement did not specify the forms and amounts of coverage that 420 Kent was required to procure for US Fence, such a provision was unenforceable as the parties had not agreed on its material terms.  Applying contract law principles, the Court held that the fence rental agreement unequivocally obliged 420 Kent to procure coverage in the event of injury AND name US Fence as an insured.  Although 420 Kent had obtained insurance coverage, they failed to name US Fence as an insured on their policy.  Accordingly, the Court found that US Fence was entitled to Summary Judgment on this issue, and 420 Kent must indemnify US Fence for any amount allowed by their insurance policy limits.

The Court also reaffirmed its denial of 420 Kent’s claims for common-law indemnity.  Generally, a property owner is not vicariously liable for the negligent acts and omissions of an independent contractor hired to perform work.  However, an exception applies for property owner liability when an independent contractor’s negligence creates a dangerous condition on a sidewalk or public highway.  Under this exception, the property owner adjacent to a public sidewalk may be vicariously liable for independent contractor negligence unless the property owner can establish that they are free from negligence as a matter of law and did not direct, supervise, or control the construction work that led to the injury.  In this case, Plaintiff was injured on that portion of Defendant’s property which is adjacent to a public sidewalk of a park. Thus, 420 Kent must also prove that they lacked constructive notice of the alleged dangerous condition caused by the fence and that US Fence’s sole negligence caused the Plaintiff’s injury.

While 420 Kent did establish that US Fence had the authority to direct, supervise, and control the fence installation and removal project, the Court held that 420 Kent failed to prove that it was free from negligence as a matter of law. Specifically, 420 Kent did not establish they lacked constructive notice of the alleged dangerous condition.  In other words, a triable issue of material fact exists regarding whether the alleged dangerous condition existed for some time before the accident and whether 420 Kent had notice of the same.

New York practitioners are encouraged to review this opinion, as the denial of 420 Kent’s Motion to Reargue emphasizes that an owner of property adjacent to a public sidewalk can be found vicariously liable for dangerous conditions on their property even when the property is directly controlled or managed by a third-party contractor.  Additionally, courts are likely to enforce insurance procurement provisions when it is unequivocally clear that it is the property owner’s obligation to name the contractor as an insured, even if such provisions lack specific details regarding coverage forms and amounts.

Pennsylvania Trial Court Denied Summary Judgment in Slip-and-Fall Suit on Basis of the “Hill and Ridges” Doctrine

In Aaron Johnson v. Robin Harris-Dent, Civil Action No. 23-00,097, Pennsylvania Court of Common Pleas of Lycoming County denied a Defense Motion for Summary Judgment on basis of the “Hills and Ridges” Doctrine.

In within matter, Plaintiff Johnson alleged injuries from a slip-and-fall on black ice suffered while an invitee on Defendant’s property.  Plaintiff further alleged that his fall occurred on Defendant’s elevated covered front porch near a connecting stairway.  It was undisputed that on the day of the incident, a winter storm created icy conditions on and around Defendant’s property.  It was also undisputed that at the time of incident, the storm had stopped briefly and it started to snow.  A central claim by Plaintiff is that the snow was melting as it landed.

Defendant Harris-Dent moved for Summary Judgment and contended that Plaintiff’s claim was barred by the “Hills and Ridges” Doctrine, which provided that a defendant would not have a duty to remedy snow and ice conditions while a winter weather event was in progress.  Further, Defendant posited Plaintiff’s assumption of risk by arguing that as Plaintiff frequently helped her with snow and ice removal, Plaintiff assumed the risk of slipping and falling because Plaintiff knew or should have known that the area near Defendants’ property was prone to slippery conditions.  Plaintiff counter-argued that the  “Hills and Ridges” Doctrine was inapplicable because the incident did not occur while in the middle of snowing, and that the incident occurred on a specific, localized patch of ice on Defendant’s elevated covered porch.

In its contemplation, the Court noted the “Hills and Ridges” Doctrine “clarified the duty of a possessor of land owes to third parties when there is a dangerous condition on the land caused by ice and snow, because ‘to require that one’s walks be always free of ice and snow would be to impose an impossible burden in view of the climatic conditions in this hemisphere.”  The Court further articulated a plaintiff’s burden of proof imposed by the “Hills and Ridges” Doctrine when claiming injuries due to a slip-and-fall on ice or snow: “1) [that] snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon; 2) that the property owner had notice, either actual or constructive of the existence of such condition; 3) that it was the dangerous accumulation of snow and ice which caused plaintiff to fall.”

The Court noted that the “Hills and Ridges” Doctrine could not apply where the injury resulted from fall on an “isolated, localized patch of ice as opposed to where there are general icy conditions due to recent or continuing inclement weather.”  In the Summary Judgment record, the Court found evidence suggesting that general icy conditions also existed at the time of the fall.

Notwithstanding, the Court found that a genuine issue of material fact relating to the location of the fall precluded Summary Judgment.  Plaintiff alleged that he fell four to five feet into the interior of Defendant’s covered porch, which consisted of a roof, three walls, and an awning.  The Court reasoned that those protection afforded to landowners and possessors under the “Hills and Ridges” Doctrine would not extend to falls sustained inside structures or partially open structures, and that the applicability of the “Hills and Ridges” Doctrine turns on the exact location of fall, a question of fact the Court decisively reserved for a jury.

Pennsylvania practitioners should be advised that the “Hills and Ridges” Doctrine functions more as a narrow exception moreso than as a brightline rule, as its applicability is highly fact-sensitive, and that it does not completely and evenly guard against liability on every inch of a landowner or possessor’s land.

Nonparties May Not Claim a Lack of Relevancy to Oppose a Proper Subpoena

As a general rule, New Jersey courts prefer the broadest possible discovery to allow lawsuits resolve on their own merits.  While there are limitations built into the permissive rules on discovery for both parties and nonparties, only with a specific, factual showing of those limitations will a court step in to restrict discovery.  In Alt. Glob. One, LLC v. Feingold, 2024 N.J. Super. LEXIS 95 (App. Div. Oct. 30, 2024), the Appellate Division reinforced the rule that, without more, a nonparty’s claims of lack of relevancy or materiality cannot restrict a party’s right to broad pretrial discovery.

Feingold arises out of a Florida lawsuit filed by several corporate entity Plaintiffs against two individual Defendants for the conversion of certain investments in the businesses.  In an effort to obtain information about the Defendants’ conduct, the corporate Plaintiffs served a subpoena on non-party New Jersey resident Daniel Amaniera, to depose him in New Jersey.  Amaniera, a business rival of the Plaintiff entities, opposed the subpoena with a Motion to Quash, asserting that because he was a competitor of the Plaintiffs, the subpoena was an effort to bully and harass him and to obtain confidential business information.  Amaniera’s Motion to Quash went on to say that his (Amaniera’s) testimony is irrelevant as he has no information related to the Defendants.  Plaintiffs’ Opposition to Amaniera’s Motion included several affidavits that linked the business dealings between Amaniera, the Defendants, and the Plaintiff entities.  The trial court, referring to the broad discovery rules, denied the Motion to Quash and allowed the deposition to proceed.

On Amaniera’s appeal, the Appellate Division affirmed.  The Court’s opinion emphasized the liberality of discovery rules to allow the broadest possible pretrial discovery to ensure the proper outcome of litigation depends on a case’s merits.  The Court did note that a party’s broad right to discovery is not unlimited, pointing out that claims of “annoyance, embarrassment, oppression, or undue burden,” or demands seeking trade secrets or confidential information can outweigh the general presumption of discoverability.  However, such claims of shelter from the discovery rules require that claimant show good cause, that the claim be specific and well-articulated, and that the claim not be based on broad allegations of harm.  The Court found here, that all of Amaniera’s claims of harassment and privilege lacked any specificity.  Moreover, they found that his claims of lacking of relevancy and materiality also carried no weight because he had no genuine interest in the outcome of the litigation.  Ultimately, the burden of non-party Amaniera in sitting for his deposition did not outweigh the benefits to the Plaintiff business entities in their right to broad pre-trial discovery.

New Jersey practitioners should take note that the critical component of this matter was not the Court’s continued support of broad pretrial discovery, but the Court’s emphasis and implicit acknowledgment that when a party or non-party can provide specific facts to support their claims of harassment, embarrassment, confidentiality, or privilege, there is a line to be drawn; yet where that line stands requires a more specific and egregious showing than what Amaniera was able to provide herein.

The Supreme Court of N.Y. Denied Cross-Summary Judgment Motions and Found that Paint Left on Stairway Constitutes an Issue of Material Fact as to Causation

By: Uyen Nguyen, Law Clerk
Edited By: Nuo (Norman) Jiang, Esq.

The Supreme Court of the State of New York (“NY Supreme”) recently denied Plaintiff Donna McKnight’s (“Plaintiff”) and Defendant New York City Transit Authority’s (“Defendant”) Motions for Summary Judgment in the case McKnight v. N.Y.C. Tr. Auth., 2024 N.Y.L.J. LEXIS 2369.  Plaintiff brought said personal injury action against Defendant NYC Transit Authority for injuries sustained on August 22, 2019, when Plaintiff slipped and fell on a stairway at the Canal Street Station in Manhattan, NYC.  Plaintiff alleged that wet paint negligently left or applied by Defendant on the stairway caused her to fall.

Plaintiff moved for Summary Judgment, and Defendant NYC Transit Authority cross-moved for Summary Judgment.  The Court denied Plaintiff’s Motion on the basis that Plaintiff’s expert opinion failed to address Plaintiff’s allegations about the wet paint and did not provide evidence such as measurements, testing, clear photographs, or empirical data to support Plaintiff’s claims.  The Court then denied Defendant NYC Transit Authority’s Motion on the basis that Defendant failed to establish that Defendant was entitled to judgment as a matter of law.

The Court and parties did not dispute that Defendant NYC Transit Authority, as leaseholder, owes their riders a duty of care to keep the NYC transit stations in a reasonably safe condition.  It is also uncontested that the yellow paint allegedly encountered by Plaintiff on the Canal Street Station stairway was Defendant’s paint.  The Court refined the issue as whether the wet paint condition complained of by Plaintiff was a proximate cause of her injury and whether Defendant NYC Transit Authority was negligent.

To prevail on a motion for summary judgment, the moving party must show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.  In opposition, the non-moving party must show that there are genuine issues of material fact which need to be decided at trial.

Generally, to establish a prima facie case for negligence, a plaintiff must show (1) that a defendant owed a duty of care, (2) that the duty was breached by that defendant, (3) that said breach of duty caused plaintiff’s injury, and (4) that plaintiff suffered damages.  Specifically, in a New York slip and fall case, to impose liability on a defendant, a plaintiff must show that a defendant either created a dangerous condition or had actual or constructive knowledge and failed to address it.

Here, the Court’s opinion helpfully pointed out numerous deficiencies in Plaintiff’s and Defendant’s Motions for Summary Judgment.

Plaintiff argued that the wet paint on the stairway was dangerous and slippery and extended more than four inches, and thus violated Defendant NYC Transit Authority’s internal guidelines.  Plaintiff also offered two theories about Defendant’s negligence: that the paint caused her to slip and fall, and/or that Defendant’s failure to apply anti-skid materials caused her to slip and fall.  However, Plaintiff did not offer any evidence demonstrating the actual conditions of her fall, such as photos showing the actual dimensions of the alleged paint condition.  Further, Plaintiff’s expert architect’s report was also criticized in that the expert only stated that the paint is slippery because it did not contain anti-skid material but failed to demonstrate how such a conclusion was reached, and failed to cite or reference any regulations or industry standards as support.  For these reasons, the Court denied Plaintiff’s Motion as Plaintiff failed to establish that there is no genuine dispute of material facts and that Plaintiff is entitled to judgment as a matter of law.

Meanwhile, the Court also dismissed Defendant’s Cross-Motion for Summary Judgment, holding that Defendants had not met their burden to show their lack of negligence was not the proximate cause of Plaintiff’s injury as a matter of law.  Additionally, the Court also pointed out that to successfully oppose a plaintiff’s motion for summary judgment, it is insufficient for a defendant to simply identify problems or issues with a plaintiff’s negligence case; defendants must still establish that they are independently entitled to judgment as a matter of law based on the undisputed material facts.

New York practitioners are encouraged to review this Opinion, as the denial of both Motions helpfully pointed out several necessities to observe when filing and opposing a Motion for Summary Judgment in New York.

 

In Absence of Direct Claim Against Insurance Carrier, Appellate Division Found No Carrier Liability for Payment of Jury Verdict Against Bankrupt Insured

On August 23, 2024, the Appellate Division rendered an interesting unpublished Opinion in the matter of Reid v. McKeon, No. A-2519-22, on the issue of whether an insurance carrier can be forced to pay a jury verdict rendered against insured Defendants who subsequently declared bankruptcy, IF that Plaintiff never filed a claim against the insurance carrier.

On May 10, 2012, Plaintiff Maxine A. Reid (hereafter “Plaintiff”) became injured when Defendant John McKeon, operating a vehicle owned by Defendant Joyce McKeon (John and Joyce McKeon hereafter “Defendants”) and insured by CURE Auto Insurance Company (hereafter “CURE”), struck Plaintiff’s vehicle in the rear.  Plaintiff commenced suit which resulted in a trial, at which Defendants stipulated to liability, and the jury returned a verdict in favor of Plaintiff in the amount of $250,000.00.  CURE’s relevant insurance policy issued to Defendants had a $100,000.00 policy limit.

After the jury verdict was affirmed on appeal, Defendants sought CURE’s payment of the entire $250,000.00 verdict.  However, Defendants subsequently filed for Chapter 7 bankruptcy, listing said injury judgment as a debt.  Special counsel then, on behalf of the Trustee, brought a “bad faith” claim against CURE and a legal malpractice claim against Defendants’ counsel retained by CURE.  This suit was settled, with a “full dismissal” in exchange for CURE’s payment of $220,000.00 to the Bankruptcy Estate.  From this, the Trustee then made payment to Plaintiff in the amount of $111,664.89 and, per 11 U.S.C. Section 727, discharged Defendants’ $250,000.00 debt to Plaintiff.

Nonetheless, thereafter, Plaintiff attempted to recover additional funds from CURE despite that CURE was never a party to the underlying action or any other connected claims.

To those ends, Plaintiff filed a Motion to Enforce Judgment pursuant to Rule 4:42-1, in which Plaintiff’s counsel acknowledged that Plaintiff and CURE had “never achieved” any settlement.  Plaintiff further contended that CURE was still obligated to pay Plaintiff the $100,000.00 policy limit, and that any payment received from the Bankruptcy Trustee was regarding the “excess verdict” and to settle the malpractice claim against Defendants’ counsel retained by CURE.

In response, CURE had taken the position that it was not obligated to pay the contractual policy limits and argued that Plaintiff was attempting to enforce a judgment that did not exist against CURE, and to collect a debt already paid and discharged in Defendants’ Chapter 7 bankruptcy.  CURE further argued that Plaintiff had no standing to assert a claim against CURE, and that Plaintiff was improperly seeking a “double recovery” in circumvention of the Bankruptcy Code.

Trial Court ruled that CURE was to pay Plaintiff the $100,000.00 policy limit.  Notably, though neither side had mentioned or briefed this issue, Trial Court independently found support for its ruling by N.J.S.A. 17:28-2, providing that in event of a bankruptcy, “an action may be maintained by the injured person against the corporation under the terms of the policy for the amount of the judgment in the action not exceeding the amount of the policy.”  Accordingly, Trial Court granted Plaintiff’s “Motion to Enforce Judgment”, and CURE appealed.

The Appellate Division found “no support in the plain language of either Rule 4:42-1(b) or (c) for the order entered  by the court on plaintiff’s motion,” observing that these provisions do not provide for the enforcement of a judgment or order as requested by Plaintiff, and, in any event, there was never any judgment or order that could be enforced against CURE.  (Opinion Pg. 11).  While Rule 4:59-1 provides for enforcement of judgments and Rule 1:10-3 provides for enforcement of orders, Plaintiff had not implicated them; again, because no judgments or orders were entered against CURE in the first place.

Emphatically, the Appellate Division further found that Trial Court erred in relying on Rule 4:42-1(b) and (c) because CURE had not been a party to the underlying action, and thus this “denied CURE of all the due process protections that are incorporated in our Rules of Court for individuals or entities against whom a judgment in sought.” (Opinion Pg. 13).

While the Appellate Division did note that N.J.S.A 17:28-2 may provide Plaintiff with a claim against CURE; significantly, Plaintiff had simply never pursued one, and thus the Appellate Division interpreted the “maintenance-of-an-action provision in N.J.S.A. 17:28-2 to require that an injured party seeking relief from an insurance carrier under the statute must first file a complaint… and properly serve the pleading… ” to apply, and accordingly provide “all the procedural requirements, rights, safeguards, and remedies afforded to the parties to a civil proceeding under our Rules of Court.  The court’s order depriving CURE of the action required under N.J.S.A. 17:28-2 was therefore entered in error.”  (Opinion Pg. 13).

Notwithstanding, the Appellate Division was careful to stress that it offered no opinion on the merits of Plaintiff’s claim or CURE’s defenses.  Rather, “(w)e do not foreclose plaintiff from initiating and maintaining an action against CURE based on its claim under N.J.S.A. 17:28-2 or otherwise, but any such action shall be subject to any and all defenses that may be interposed by CURE.”  (Opinion Pg. 15).

Accordingly, this unpublished opinion is a useful case study of the respective applicability of Rule 4:42-1 and N.J.S.A. 17:28-2 as to the issue of potential insurance carrier liability in the context of a bankruptcy by an insured subsequent to entry of a verdict.

Capehart Blogs

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Employee’s Mid-Shift Pizza Run Was Outside of the Scope of His Employment to Hold Employer Vicariously Liable for His Car Accident

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