A Change of Direction Requires Adequate Warning

The Second Judicial Department for the Supreme Court of the State of New York, Appellate Division, reversed a jury’s verdict because of the lower court’s failure to provide the jury with an instruction on the appropriate statutory standard whereby the violation constituted negligence per se.  See Barbara Moore v. City of New York, et al., ____ A.D.3d ___ 2021 N.Y. Slip Op. 04483 (2d Dept. 2021).  As the Trial Court never instructed the jury on the applicable standard to apply to the facts of the case, the Appellate Division reversed the judgment at the trial.

In Moore, the plaintiff was riding her bicycle on the street and approached a traffic light which was red upon her approach. The plaintiff stopped her bicycle along the side of defendants’ vehicle, which was also stopped at the red light. The defendants’ vehicle did not use its turn signal as the plaintiff approached the stopped vehicle and the plaintiff had no warning that the defendants intended to change direction.  Upon the light changing from red to green, the plaintiff proceeded to ride her bicycle straight while defendants’ vehicle turned right, thereby striking the plaintiff and running her over.  Due to the subject accident, plaintiff sustained serious injuries and the underlying action commenced.

During a bifurcated trial, the plaintiff testified to the above-referenced factual situation.  The defendants testified that it was the first vehicle stopped at the red light and prior to the light changing to green, the defendants activated the vehicle’s right turn signal; after the light changed and defendants checked its vehicle’s mirror, he slowly turned the vehicle never seeing the plaintiff.  The defendants deny ever hitting the plaintiff or her bicycle. The Trial Court instructed that the defendants were only required to place the plaintiff on reasonable notice of defendants’ intent to turn right and that defendants were “not required to signal at least 100 feet before turning his vehicle.”  Ultimately, the jury found the defendants were not negligent and the Trial Court dismissed the plaintiff’s complaint; the plaintiff then appealed.

The Appellate Division reversed the Trial Court’s dismissal of the plaintiff’s complaint as “[c]ourts are ‘obligated to interpret a statute to effectuate the intent of the Legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words.’” The Vehicle and Traffic Law was unambiguous and clear thereby requiring the defendants to signal “continuously during not less than the last one hundred feet.”  By defendants’ own testimony, the vehicle was not stopped shifting from a parked position but stopped at a red light which required an operator to signal continuously. Moreover, the unambiguous nature of the statute when combined with the trial facts, required the Trial Court to properly instruct the jury of the appropriate standards establishing the negligence per se of the defendants.

From a defense perspective, Moore teaches us the importance of understanding the legislative intent of the alleged violations of laws, statutes, and regulations upon receipt of a plaintiff’s discovery responses to adequately prepare viable defenses to asserted claims; the unambiguous language and the clear intent of the laws, statutes, and regulations will affect the progression of a trial as well as the ultimate outcome during a trial.  Therefore, during the course of a litigation, by understanding the legislative intent, the defense would have adequate warning of any changing direction whether the court, the plaintiff, or the defendant asserts the change during the course of the litigation for the benefit of the defense.

An Unrelated Death of a Claimant does not Entitle their Estate to Lump Sum Benefits when the Claimant has no Qualifying Dependent as Defined by WCL § 15(4)(d)

The issue for the Court of Appeals to determine in the Matter of Estate of Youngjohn v Berry Plastics Corp., 36 NY3d 595 (2021) was whether in light of the legislature's 2009 amendments to the Workers' Compensation Law (“WCL”) permitting payment of schedule loss of use (“SLU”) benefits through lump sum awards, a claimant's estate was entitled to recover the full value of a SLU award despite the limitation set forth in WCL § 15(4)(d). WCL § 15(4)(d) limits recovery by a claimant's estate to "an amount not exceeding reasonable funeral expenses" when a claimant dies of causes unrelated to the work injuries without a surviving spouse, child under the age of 18, or qualifying dependent.

In this case, the parties notified the Workers’ Compensation Board (“WCB”) that they had agreed on a SLU award, but the stipulation had not been approved prior to the claimant’s death, which was unassociated with his work-related injuries. At the time of his death, the decedent had no surviving spouse, minor children, or other qualifying dependents as defined by WCL § 15(4)(d). Proceedings were continued through the decedent's estate and a SLU stipulation was reached. However, a dispute arose regarding whether the Estate was entitled to the full value of the SLU award or only the portion of the award up to the date of decedent's death, with the remainder of the award capped in accordance with WCL § 15(4)(d). The Estate argued that, in light of the legislature's 2009 amendments authorizing lump sum SLU awards, the entirety of decedent's award accrued at the time of his accident or death, and that the 2009 amendments effectively rendered WCL § 15(4)(d) inapplicable to SLU awards.

The Court of Appeals held that when a claimant dies from unrelated causes before a lump sum SLU award is entered or received, the estate may recover only reasonable funeral expenses and that portion of the SLU award that would have been due to the claimant before death.

The Court of Appeals explained that the 2009 amendments allowed SLU awards to be made in one lump sum payment, but that the legislature did not amend WCL § 15(4)(d) which limits an estate's recovery of the portion of an SLU award to what would periodically become due up until the decedent's death. Therefore, the Court of Appeals found that to accept the Estate's argument that the entire SLU award became "due" to the claimant at or prior to his death, would be to hold that the legislature implicitly rendered Workers' Compensation Law § 15(4)(d) inapplicable to SLU awards. As a result, the Court further held that if the legislature intended for a claimant's estate to recover the full value of an SLU award under the circumstances in this case, then the law would have to be amended to reflect that.

In Big Move In Favor of Property Owners: NJ Supreme Court Implements "Ongoing Storm Rule" In Landmark Decision

Earlier last month the Supreme Court overturned the Appellate Division’s Ruling in Pareja v. Princeton International Properties, 463 N.J. Super. 231 (App. Div. 2020). This case pertained to a plaintiff who was allegedly injured, when he slipped and fell on the defendant’s property.  The night prior to the alleged incident, weather records submitted by defense counsel showed a wintry mix of light rain, freezing rain, and sleet had fallen.  More importantly, at the time of plaintiff’s alleged fall, light rain and pockets of freezing rain were falling as well.  The Appellate Court ruled that due to the circumstances, defendants had a duty of reasonable care to maintain the sidewalk even when precipitation was falling. Id. at 235.  The New Jersey Supreme Court disagreed.

In a 5-2 vote the New Jersey Superior Court held that “commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm, but unusual circumstances may give rise to a duty before then.  244 N.J. 168 (2021). The Court also presented two exceptions to which a duty of this kind may arise: if the owner’s conduct increases the risk, or the danger is preexisting. Id.

The Court analyzed the decades of precedent pertaining to the removal of snow on sidewalks and determined that although the “ongoing storm rule” had not been expressly adopted, the Court had implicitly come to this conclusion over the course of its history. In 1944, the Court determined that the previous general principle of non-liability did not extend to situations where landowners, through their own negligence (improper snow removal), created a dangerous condition.  Further, in 1983, the Court implemented a duty on a landlord for failing to remove snow from storms that occurred earlier in the week and the night before. Mirza v. Filmore Corp., 92 N.J. 390, 400 (1983).  Thus, the Court had essentially taken the stance that liability would only arise “if actual or constructive notice” was presented by plaintiff. Id.

In addition, the Court found that to impose a duty on landowners does not consider the size, resources, and ability of individual commercial landowners may not be reasonable—or even possible—for smaller ones. Id. Further, the Court had no desire to submit every commercial landowner to litigation when it is not feasible to provide uniform, clear guidance as to what would be reasonable.

This decision brings the State of New Jersey in line with its neighbors Connecticut, Delaware, New York, and Pennsylvania.  Each have adopted and protected a form of the ongoing storm rule, recognizing the difficulty and futility of attempting to remove accumulations of snow and/or ice during an ongoing storm and that any duty to potential plaintiff’s should only be imposed after a reasonable time has passed since the conclusion of a storm.

As a result, commercial landowners can breathe a sigh of relief as to the onerous burden set by the Appellate Division.  However, commercial landowners are not completely absolved of liability, the Court implemented exceptions to this rule.  More importantly, the Court will still allow juries to hear questions of fact pertaining to when the actual storm concluded or whether the accumulation of snow and/or ice was caused by a previous storm.

NJ Appellate Division Speaks Out on Liability Waiver Enforceability

In Gayles v. Sky Zone Trampoline Park, the Appellate Division addressed what was an issue of first impression for New Jersey Courts. Specifically, the Court determined whether an adult can validly sign a liability waiver for children not their own. The Court answered this question in the negative, absent legitimate apparent authority.  

The facts of Gayles are relatively straightforward. A parent invited several of her son’s friends to an outing at Skyzone to celebrate his birthday. Gayles v. Sky Zone Trampoline Park, 2021 N.J. Super. LEXIS 61, at *1 (App. Div. May 12, 2021). For those unfamiliar with it, Skyzone is a recreation center where participants, often children, can use trampolines alone or with friends. Id. Upon arrival at Skyzone, the parent executed liability waivers on behalf of her own son and the other children accompanying her. Id. All of the children she signed for were minors. Id.

During their time at Skyzone, one of the children was injured while using a trampoline, giving rise to the lawsuit at issue. Id. at 4. On appeal, Skyzone argued that it was reasonable in its reliance on the parent’s apparent authority to sign its waivers on behalf of the children accompanying her. Id. at 5. In addition, Skyzone claimed that to hold otherwise would unreasonably burden its business in that it would be forced to obtain consent or powers of attorney from the parent or guardian of every child that uses its facilities, even in a party setting such as the one at issue. Id. at 5.

The Appellate Division rejected both of these arguments. Regarding Skyzone’s argument alleging the existence of apparent authority, the Court found that none existed, stating that, “[w]e can find no decision…in which someone who was not the child's parent…possessed the requisite actual or apparent authority to execute a waiver of rights regarding the minor's personal injury claims.” Id. at 10. Despite finding that there was a valid agency relationship between the parent and the minor children accompanying her, the Court’s rejected the existence of apparent authority as there was no evidence beyond Skyzone’s own intake procedures that the scope of the parent’s authority as agent extended to the execution of a liability waiver. Id. at 13. The Court noted the importance of such authority given the waiver’s execution would substantially limit the means by which any child could recover for injuries sustained at the facility. Id.  

With regard to Skyzone’s argument that the imposition of a requirement to assure consent on behalf of such minors would unreasonably burden its business, the Court stated that it was unpersuasive as such a mandate would not be unduly burdensome. While not addressing this argument at length, the Court suggested possible methods of implementation could include an online consent form to be completed by each parent, or a form which could be emailed to each parent and given to their child for submission on arrival. Id. at 14.

The main takeaway from this decision is that facilities desiring protection from liability waivers must assure that the signatory has proper authority to execute the document on behalf of any minors accompanying him/her.

Recent Decision on Florida's Negligence Based "Going and Coming" Rule

The Florida Second District Court of Appeal recently ruled on the “going and coming” rule in Peterson v. Cisco Sys., 2021 Fla.App.LEXIS 7652 (Fla. 2d DCA 2021).  This case involved a personal injury claim in which the Plaintiff sued Cisco Systems under the theory of respondeat superior for damages which were allegedly caused by the negligent acts of Cisco’s employee.  As we all know, “respondeat superior makes employers liable for the negligence of their employees for wrongful acts committed within the course and scope of their employment." Id.

Cisco Systems sent an employee from Virginia to Tampa, Florida, to do work for a customer located in Tampa.  The Cisco employee had to drive a rental car from the hotel he was staying at to an on-site location for the Tampa based customer.  The Cisco employee was driving to the work site from the hotel when the collision with Plaintiff occurred.  Cisco moved for summary judgment, claiming a person driving to or from work is not within the course and scope of his employment.  The trial court granted summary judgment in favor of Cisco.  An appeal was raised and heard by the Second DCA.

The “going and coming” rule is a limitation on the vicarious liability of an employer.  Under Florida law, it is well established that “an employee driving to and from work is not within the scope of employment so as to impose liability on the employer." Id. at 3.  The court distinguishes this rule based in negligence with the “travelling employee” rule developed under workers’ compensation law.  The “travelling employee” rule states "an employee whose work entails travel away from the employer's premises is within the course of his employment at all times during the trip other than when there is a distinct departure for a non-essential personal errand." Id. at 4.

This decision firmly establishes the “travelling employee” rule only applies in workers’ compensation cases.  Additionally, the “going and coming” rule is more limited in its application because it requires the employees conduct to occur substantially within authorized time and space limits and have a purpose that serves the master.

It is important to recognize these situations when developing Answers and Affirmative Defenses as well as responses to Requests for Admissions.  Ill-advised admissions or concessions that an employee was working in the course and scope of his employment will overrule the limitation afforded by the “going and coming” rule.  Generally, vicarious liability claims must be tied to the course and scope of employment.  That makes it important to understand this distinction as, though similar, one may be a viable exit strategy while the other is a failed argument. 

Florida Liability Claims Conference Addresses a Wave of Emerging Topics in Florida Defense Litigation

The Florida Defense Lawyers Association held their annual Florida Liability Claims Conference between June 17-18 at Disney’s Yacht Club Resort on the Walt Disney World property in Orlando. The event was attended by insurance attorneys and professionals alike, including adjusters, corporate representatives from a number of institutional carriers and a host of medical and engineering experts.

Current topics coloring civil litigation throughout Florida were discussed, with panel discussion and seminar sessions held on Thursday and Friday. Callahan Fusco had the privilege of contributing to panel conversations regarding effective approaches to expert discovery in high medical damages cases, as well as attending discussions about the disparate treatment of defendants in Boecher expert discovery, the importance- and lost art- of professionalism in ongoing litigation and settlement discussions, and the strategic value and importance of independent medical examinations in insurance defense litigation. Other topics addressed at length in panel discussions or conference seminars included spoilation of evidence issues, both presuit and post-suit, evaluating the reasonableness of hospital billing, the effective use of courtroom visualizations at trial, the use of biomechanical and biomedical experts in premises liability litigation, emerging issues in Florida medical malpractice law and Florida’s recent shift back to the Daubert standard and the way that both increases the importance of foundational deposition discovery and opens the door for increased defense challenges to Plaintiff expert witnesses.

Individual sessions involved discussions as detailed as how to evaluate seat belt marks and what they tell litigators about occupant-belt relationships to broader discussions about defense-friendly or defense-averse trends in Florida case law. Ultimately, each seminar and panel discussion was aimed at better equipping practitioners with the procedural, substantive and ethical tools to refine and strengthen their motion, discovery and trial practice.

The FDLA Young Lawyers also proudly partnered with the Second Harvest Food Bank of Central Florida to help provide hunger relief to families battling food need in the wake of the global pandemic that affected so many across the United States. This terrific partnership gave a philanthropic feel to an event that annually helps produce better lawyering and counsel across the state of Florida.