- On the Pulse…Important and Interesting Litigation Achievements…We Are Proud of Our Attorneys for Their Recent Victories
- June 30, 2017
Michael Archibald (Tampa, FL), Shane Haselbarth (Philadelphia, PA) and Ryan Burns (Fort Lauderdale, FL) successfully defended an appeal of a favorable verdict in a wrongful death action tried by Michael in a negligent security case. Michael represented an affordable housing development where the shooting of a 20-year-old resident occurred at the development’s playground. The decedent was found with cash in his pockets, so it did not appear that robbery was the motive. The homicide investigation was an unsolved cold case. Therefore, the police refused to provide any substantial evidence concerning how the shooting was done or by whom, leaving our client to fend for itself in determining why its security protocols were not the cause of the decedent’s murder. Moreover, during the trial, Michael had to overcome the trial court’s exclusion of critical evidence concerning the decedent’s request for a gun from his friend hours before his death, as well as evidence that would have supported an inference that the decedent was loitering in violation of curfew at the time of his death. Despite these challenges, Michael was able to convince the jury to apportion 67% comparative fault to the decedent, thereby reducing a $1 million verdict to $333,000. The plaintiff challenged the comparative fault apportionment on appeal. After considerable briefing by Shane and Ryan, and oral argument by Ryan, the Second District Court of Appeal issued a decision affirming per curiam, effectively stripping the plaintiff of the ability to petition to the Florida Supreme Court.
Frank Baker and Wendy O’Connor (Allentown, PA) obtained summary judgment in favor of our client, the owner of an event facility, in an action brought by a husband and wife who claimed damages as the result of the wife’s slip and fall on a patch of ice on the facility’s parking lot. Under cross-examination, the wife admitted that she had seen the patch of ice just prior to her fall and had proceeded to walk across it anyway because she “thought she wouldn’t fall.” The plaintiffs also admitted at deposition that they were unaware of any other patches of ice in the area of the parking lot other than where the wife fell. In response to the motion for summary judgment, and contrary to her deposition testimony, the wife submitted an affidavit asserting that the conditions at the parking lot were “generally icy” on the day in question and that she had no safe alternative route into the facility. Additionally, the plaintiffs claimed that the doctrine of assumption of the risk did not apply since the wife was not the driver of the couple’s vehicle and, thus, did not select the parking space from which she alighted. The court rejected the wife’s affidavit, finding it to be “not credible” and “directly contradictory to her previously stated facts.” Applying the principles articulated in Carrender v. Fitterer, the court went on to note that the patch of ice on which the wife fell was “open and obvious” to her, that she chose to traverse the ice, and that she appreciated the risk of doing so, such that summary judgment based upon the doctrine of assumption of the risk was appropriate.
Brittany Bakshi (Harrisburg, PA) obtained summary judgment in a slip in fall case filed in Lebanon County, Pennsylvania on behalf of her client, a janitorial service. The plaintiff was working at a warehouse facility as an order filler. On the date of the accident, the plaintiff allegedly ate something that did not agree with her and needed to use the restroom. Upon opening the restroom door, she observed water on the floor generally and a small puddle in the center of the floor. The plaintiff admitted to seeing the water and appreciated the risk of traversing the slippery bathroom floor. However, she entered and held on to the bathroom stall wall to safely make her way to the stall. Upon exiting the stall, the plaintiff chose to exit a different way than she entered, across the center of the floor without holding onto anything, and she fell. Brittany filed a motion for summary judgment, arguing that the plaintiff encountered an open and obvious condition when she traversed the slippery floor and when she exited the bathroom stall. The court agreed and granted summary judgment.
Adam Calvert (New York, NY) obtained summary judgment for a retailer in a product liability case. The plaintiff was burned over half her body when an allegedly defective potholder ignited while she was getting a pan out of her oven. The potholder ignited her nightgown, which went up in flames. Adam represented the retailer before the Supreme Court, New York County, which dismissed the complaint against all defendants. The court dismissed the complaint because the plaintiff’s expert testified that the potholder must have touched the heating element of the oven in order to ignite. It would not have ignited if it were only close to the element. The plaintiff testified that she did not touch the element, which her expert tried to explain by stating that she must have inadvertently touched the element. The court found that the plaintiff’s expert relied on facts not in evidence and rejected his argument, finding that the plaintiff could not show that a defect in the potholder proximately caused the accident.
Walter Klekotka (Mt. Laurel, NJ) obtained a defense verdict by way of a jury trial that was held in Monmouth County, New Jersey. Walt defended a supermarket in a case in which a vendor claimed he was struck by a large swinging door that was extended beyond its limits by a piece of machinery being operated by a store employee. When the machinery cleared the door, the plaintiff claimed the door was caused to snap back and accelerate towards him, causing injury to his left shoulder, neck and back. There was no wage loss, but there was a $25,994 net workers’ compensation lien. The jury deliberated over two hours and came back with a 6-0 verdict finding no negligence on the part of our client.
Paul Lees (Allentown, PA) obtained a defense verdict for a warehouse operator following a bench trial in Lehigh County. Paul successfully defended a claim involving allegations of $100,000 in property damage to electronic equipment that had been delivered to the defendant’s warehouse. The plaintiff claimed that the defendant’s warehouse forklift operators signed for the goods as undamaged and then damaged the goods as they were removing them from the delivery truck. At trial the warehouse employees testified and showed video depicting how items are unloaded at the warehouse. They denied that they caused any damage to the goods. The defense argued that the damages were consistent with, and appeared to be caused by, the way the goods were strapped down in the delivery truck. The trial court agreed with the defense that the plaintiff failed to prove that the damage was caused by the warehouse or that its employees were negligent. The court dismissed the claim, with prejudice.
Tony Michetti (Doylestown, PA) obtained a defense verdict in the Bucks County Court of Common Pleas. The plaintiff tripped on an elevated sidewalk in front of the defendant’s home and suffered cervical, rib and knee injuries. Although the plaintiff had walked over the sidewalk many times prior to the accident, she claimed to have never noticed its condition. The defendant testified that he had observed the plaintiff, and many others, walking on the sidewalk prior to the accident without difficulty. Tony was able to argue that the defendant was not responsible under the licensee standard because the condition did not present an unreasonable risk of harm and the defendant had no reason to expect that the plaintiff would not discover or realize the risk involved.
Tony Michetti also obtained a defense verdict in a landlord out-of-possession case. The plaintiff was residing with the tenant in a rental property owned by the defendant. As the plaintiff descended the front steps of the rental home, a corner of the masonry steps broke, causing the plaintiff to fall and suffer a fracture in his dominant hand. Coincidentally, the plaintiff was a mason by trade, and he claimed that his hand injury was permanent and resulted in a seven-figure future earning loss claim. It was uncontroverted that the steps were in disrepair and that, prior to the accident, the plaintiff had offered to repair the steps if the defendant landlord would pay for the materials. The defendant landlord testified that the terms of the oral lease required the tenant to make all repairs to the property, even structural repairs. The tenant, who was the niece of the defendant landlord, denied that she had agreed to make all repairs and presented as an extremely hostile witness. The case was tried in front of a single arbitrator.
HEALTH CARE DEPARTMENT
Grant Cannon (Pittsburgh, PA) obtained a defense verdict on behalf of a primary care physician in a case where the plaintiff alleged the physician failed to order a blood test that would have detected a rare blood disorder called TTP. Five days after seeing our client, the decedent’s condition rapidly declined, and two days later, he died. Prior to trial, the plaintiff’s demand was $975,000. The defense was multifaceted. First, our client directed the decedent to the hospital where a blood test would have been performed, but the decedent refused. Furthermore, the decedent refused outpatient testing, which would have included a blood test. Our client tried to comply with the standard of care, but was prevented from doing so because of the decedent’s choices. Second, Grant contended that the decedent did not die from TTP but, rather, from a related blood disorder called DIC, which is only caused by another underlying pathology, which, in this case, was suspected to be lung cancer.
Fred Roller, Mary Kate McGrath and Michelle Moses (Philadelphia, PA) obtained a defense verdict on behalf of an emergency department physician for his alleged failure to adequately evaluate postpartum bleeding, which resulted in a hysterectomy 24 hours later. The plaintiff was 24 years old and from out of state. As she and her family were traveling from Virginia to Reading, Pennsylvania, she presented to the hospital’s emergency room two weeks postpartum with complaints of passing large, golf ball-sized clots within the past hour. Our client noted she was not bleeding in the ER, and in light of a normal hemoglobin, elected not to do a pelvic exam, order an Ultrasound or obtain an OB consult. She was discharged with instructions to follow up with her OB within 24 hours, although she allegedly told the doctor that she and her family were in Reading for the week. She appeared to be fine the next day, even though, 21 hours after discharge, she began bleeding heavily again and returned to the same ER. An ultrasound ordered by a different doctor revealed findings consistent with Retained Products of Conception and requested an OB consult. A total of six hours passed before the OB arrived. The plaintiff testified that during this time, she had massive bleeding and had very little monitoring by either the nurses or the ED doctor. A D&C was performed, but it failed to stop the bleeding, which then necessitated a hysterectomy. The plaintiff claimed that everyone, especially our doctor, failed to act promptly enough to have her condition treated, which she claimed would have preserved her uterus. The plaintiff and her husband testified that they wanted a big family. Putting aside standard of care arguments, the defense jointly presented a causation defense of subinvolution of the uterus, which is a relatively rare condition that manifests about two weeks after delivery and prevents placental arteries from sealing off and for which the prevailing treatment is hysterectomy. The Berks County jury returned a unanimous defense verdict after nearly three hours.
PROFESSIONAL LIABILITY DEPARTMENT
Larry Berg and Kara Pullman (Mt. Laurel, NJ) obtained summary judgment in an employment law matter in which the plaintiff, a former employee of the defendant company, claimed that she was terminated because of her age in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 105-12. The defendant company had an office in New Jersey, but the plaintiff worked out of her home in Massachusetts. According to the defendant, in the seven years prior to her termination, she had not traveled to New Jersey for any work-related reason. The plaintiff claimed to have attended two meetings in New Jersey between 2003 and 2005, each lasting two days, and the last work-related contact the plaintiff claimed she had with the state of New Jersey occurred in 2008 when she supposedly attended a retirement dinner and a “breakfast meeting” with one other person the next morning. The court agreed with the defendant’s arguments set forth in its motion for summary judgment that the LAD protected only New Jersey residents and that the plaintiff’s limited contacts with the state did not afford her the statute’s protections.
Larry Berg and Kara Pullman also obtained summary judgment in a matter where the plaintiff put an offer in on a home in Lambertville, New Jersey, after reviewing its online listing. Both the buyer and sellers were represented by the defendant real estate agency under a dual agency agreement. During the home inspection, the water pressure in the home, which was serviced by a well, dropped after ten minutes. The seller’s real estate agent commented that the issue was probably due to a pressure switch. The inspection did not include an analysis of the well’s capacity or recovery time. The sellers fixed the pressure switch, and a subsequent inspection indicated no further water pressure issues. The plaintiff alleged that, shortly after purchasing the property, water system issues reoccurred, and an assessment revealed that a new well was necessary. The plaintiff alleged negligence, breach of contract, breach of fiduciary duty, common law fraud, and Consumer Fraud Act claims as to the sellers’ realtor and real estate agency. We argued that there was nothing in the record to suggest that the sellers’ realtor made any misrepresentations regarding the property and that he did not commit fraud by expressing his opinion regarding the pressure switch. The plaintiff also failed to present expert testimony that the sellers’ realtor and real estate agency breached the standard of care or that any issues actually existed with the well. The court agreed, and all claims as to the real estate agency and sellers’ agent were dismissed.
Patrick Boland and Mark Kozlowski (Scranton, PA) obtained summary judgment on behalf of a police department and a police officer accused of using excessive force. The plaintiff was detained by police following reports of an individual with a gun who was riding an ATV near an old amusement park. The plaintiff appeared to be fleeing police on his ATV when he turned into a parking lot. After dismounting the ATV, the plaintiff was placed on the ground and handcuffed. A firearm was then discovered. After a brief investigation, it was determined that the plaintiff was not the individual sought by police. Although he was initially cited, the charges against him were withdrawn. The plaintiff sued multiple police officers and police departments for alleged violations of his constitutional rights to “freedom from use of excessive, unreasonable and unjustified force against his person, the right to be free from malicious prosecution, the right to be free from false arrest and the right to due process of law.” Initially, a successful motion to dismiss was filed, and our client, one of several police departments, was dismissed. Following the close of discovery, a motion for summary judgment was filed on behalf of our remaining client, a police officer. Because there were no facts in the record to show that our client was involved in the arrest, plaintiff’s counsel conceded the motion could not be opposed, and our client was dismissed from the action, with prejudice.