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New York Court of Appeals Finds that Plaintiffs Moving for Partial Summary Judgment on Liability are not Required to Prove the Absence of their Own Comparative Negligence

Plaintiff Carlos Rodriguez, a garage utility worker for the New York City Department of Sanitation, was standing between a parked car and a rack of tires when a sanitation truck, which was trying to back into a garage, crashed into the front of the parked car, propelling it into plaintiff and pinning him up against the tires.  The plaintiff sued the City of New York for negligence and moved for partial summary judgment on liability.  The Supreme Court denied plaintiff’s motion and the First Department of the Appellate Division affirmed, finding that plaintiff had failed to make a prima facie showing that he was free of comparative negligence.  The question in Rodriguez v. City of New York, 31 N.Y.3d 312 (2018), was whether plaintiffs moving for partial summary judgment in a comparative negligence action must establish the absence of their own comparative negligence.

The Court of Appeals answered this question in the negative: “To be entitled to partial summary judgment[,] a plaintiff does not bear the double burden of establishing a prima facie case of defendant’s liability and the absence of his or her own comparative fault.”  Rodriguez, 31 N.Y.3d at 315, 324-25.  In so holding, the Court of Appeals recognized that under New York’s comparative negligence statute, a plaintiff’s culpable conduct “shall not bar recovery” because it “is not a defense to any element (duty, breach, causation) of plaintiff’s prima facie cause of action for negligence”; rather, such conduct only serves to diminish “the amount of damages otherwise recoverable.”  Id. at 317-19.  The Court also noted that since a plaintiff’s culpable conduct is an affirmative defense to be pleaded and proved by the party asserting it, a rule requiring plaintiffs to disprove their culpability would flip the burden of proof and would thus be inconsistent with the plain language of the comparative negligence statute.  See id. at 318.  The Court found that such an outcome would not be consistent with the legislative history of the comparative negligence statute, which indicated that the law was designed to bring “New York law into conformity with the majority rule and represent[ed] the culmination of the gradual but persistent erosion of the rule that freedom from contributory negligence must be pleaded and proven by the plaintiff.”  Id. at 321.

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A Grocery Store is Not Liable for a Transitory Spill

A court dismissed a plaintiff’s Complaint filed against ShopRite for a fall due to debris in the main walkway of ShopRite’s parking lot in Monroe County, Pennsylvania. Karten v. ShopRite, Inc., No. 4416 CV 2016, (C.P. Dec. 3, 2018). ShopRite’s summary judgment was granted and the case against it was dismissed. The court held that ShopRite had no actual or constructive notice of the condition to find liability as it was a transitory spill.

A possessor of land can be liable for a dangerous condition on its premises if it created the condition, knew of the condition or should have known of the condition by the exercise of reasonable care. Restatement (Second) of Torts §343. A transitory spill is one that was created only moments before causing harm. Therefore, a possessor of land may not be liable for a transitory spill that it did not create, have an opportunity to rectify, or warn invitees of the condition.

In Karten, the plaintiff had just left the ShopRite and was walking on the main walkway of its parking lot when she slipped and fell on what she described as, “dark, slippery and smelled of rotten banana.” The plaintiff was unable to state how the substance got on the ground, or how long it had been there. ShopRite moved for summary judgment arguing the condition was a transitory spill and it had neither actual nor constructive notice to warrant liability.

The plaintiff argued that ShopRite had actual notice of the condition, because it had received prior complaints regarding debris in the parking lot. The court disagreed. The court held that general knowledge of a similar condition is not akin to actual knowledge of a transitory spill.

The plaintiff then attempted to argue that ShopRite had constructive notice of the spill. The plaintiff was also unsuccessful in this argument. The court dismissed any of the plaintiff’s arguments on constructive notice. The court found that the plaintiff had no evidence of constructive notice and the argument was just manufactured in opposition to ShopRite’s motion.

Ultimately, the court granted ShopRite’s motion for summary judgment. The plaintiff was unable to identify sufficient evidence to find that ShopRite had actual or constructive notice of the transitory spill. The plaintiff failed to meet her burden and the Complaint was dismissed.

ShopRite was protected from liability, because the court held that the condition was transitory. The spill could have occurred only seconds before the plaintiff fell. Therefore, it would be unjust for ShopRite to be responsible for something it could not have had control over.

Lack of notice is a powerful defense in a slip and fall case. A possessor of land is not the ultimate insurer of any injury that occurs on its property. The law still requires that a possessor of land be aware of a potential dangerous condition, or should have been aware of it for it to be held liable. Therefore, a possessor of land may not be liable for damage caused by a transitory spill if there is no evidence that could prove how long the condition existed before causing harm. Therefore, proper questioning during discovery is necessary to determine whether a plaintiff is able to prove how long a dangerous condition existed, or if a possessor of land should have been aware of the condition by the exercise of reasonable care.

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Appellate Division Revisits Contract and Insurance Policy Interpretation

The Appellate Division on January 22, 2019 decided an interesting case regarding insurance coverage which has been approved for publication. The matter is Katchen v. GEICO et al., No. A-5685-16T4, 2019 WL 272926 (App. Div. Jan. 22, 2019).

In December 2015, Plaintiff Katchen was injured in a motor vehicle accident. Significantly, at the time of the accident, he was operating a Harley-Davidson motorcycle which he owned. Before settling with the other driver or that driver’s $25,000 policy limit, Katchen submitted a UIM claim under three separate insurance policies he maintained:

1. A motorcycle policy issued by Rider Insurance Company;
2. A commercial automobile policy issued by Farmers Insurance Company of Flemington; and
3. A personal auto policy issued by GEICO.

GEICO “disclaim[ed] coverage” pursuant to an exclusion in Section IV of its policy, which addresses both uninsured motorist, or “UM,” and underinsured motorist, “UIM,” coverages.  That provision stated:

“LOSSES WE PAY.

We will pay damages for bodily injury and property damage caused by an accident which the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle arising out of the ownership, maintenance[,] or use of that vehicle.”

However, Section IV also contained an exclusion of coverage for “bodily injury sustained by an insured while occupying a motor vehicle owned by an insured and not described in the declarations and not covered by the Bodily Injury and Property Damage liability coverages of this policy.”

Because while the motorcycle was owned by Plaintiff Katchen, it was not listed on the policy issued and GEICO determined that it did not constitute an “owned auto,” which the policy defined as a “vehicle described in this policy for which a premium charges shown for these coverages.”  As a result, GEICO denied the claim.

Plaintiff Katchen then filed a declaratory judgment action naming the three carriers, seeking a declaratory judgment that the UIM coverage of all three carriers applied to the subject accident. GEICO responded by filing a motion urging the court to find its “owned motor vehicle exclusion” to be “valid, unambiguous and enforceable.” The Motion Court denied that motion, finding that the language of GEICO’s policy was ambiguous.

The parties subsequently came to an agreement that Rider and Farmers would pay their respective pro rata share of the total of $975,000.00 in UIM coverage owed to Plaintiff Katchen, and GEICO would pursue this appeal. If GEICO did not prevail, it would pay its pro rata share as well. Plaintiff, Rider and Farmers all opposed GEICO’s appeal.

Accordingly, the Appellate Division indicated that “in this appeal, we consider whether an auto insurance form may combine uninsured (UM) and underinsured motorist (UIM) coverage in a single section and include exclusions not listed on the policy’s declaration page. We also consider if an insurer may exclude UIM coverage for an accident involving a vehicle owned by the insured but not covered under the subject policy.”

The Appellate Division accordingly held that “Because we find the exclusion does not violate public policy or result in ambiguity, we reverse.”

On appeal, contract interpretation is de novo.  Manalapan Realty, L.P. v. Twp. Committee of Manalapan, 140 N.J. 366, 378 (1995).  When an insurance contract terms are clear and unambiguous, the Court interprets the policy as written, using the “plain, ordinary meaning” of the words used.  Zacarias v. Allstate Insurance Co., 168 N.J. 590, 595 (2001).  But where an ambiguity arises, the policy is interpreted in favor of the insured and against the insurer. President v. Jenkins, 180 N.J. 550, 562-63 (2004).

An ambiguity exists when “the phrasing of the policy is so confusing that the average policyholder cannot make out the boundaries of coverage.”  Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 247 (1979).

Insurance policies are to be interpreted narrowly, but the provisions within are presumed valid and effective if “specific, plain, clear, prominent and not contrary to public policy.”  Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 95 (1997).

The Respondents argued that GEICO’s policy, which addressed both UM and UIM coverage in the same section, violated various statutory mandates. GEICO responded that the exclusion unambiguously bars UIM coverage for loss sustained by Plaintiff while operating a motor vehicle he owned but did not insure under GEICO’s policy.

The Appellate Division agreed with GEICO, finding that the policy was not ambiguous.  For example, the Court observed that any ordinary reasonable person understands that a motorcycle is a type of motor vehicle.

While acknowledging that the exclusions did not appear on GEICO’s declaration page, the Appellate Division noted that requiring such would result in even more “fine print” and run the risk of making insurance policies more difficult for the average insured to understand, and would also “eviscerate the rule that a clause should be read in the context of the entire policy.”

Thus, the Appellate Division stated that “The failure to list the exclusion at issue on the declaration page does not automatically render the contract ambiguous. Reading the GEICO policy in its totality, we conclude the exclusion is clear and unambiguous. The fact that the exclusion is not mentioned on the declaration sheet does not bar its enforcement.”

Accordingly, the Katchen opinion is a very instructive recent summary by the Appellate Division of the procedure that will be utilized in analyzing contracts and insurance policies.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Storm In Progress Defense Under New York Law

By: Kristen Mowery, Law Clerk

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

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

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

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

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