Who is liable? It depends…. by Carmelo Torraca and Young Yoon

by Carmelo (Tony) Torraca Esq. and Young Yoon, Esq.

Part of our practice has been to assist companies walk the tight rope between getting additional business, while at the same time, not having all of the risk transferred directly to our client. In one of our presentations, we discussed the plight of a pest control company who, pursuant to a contract, was responsible not only for the workers’ compensation injuries to an employee who slipped and fell at a restaurant he was servicing on behalf of the company, but also indemnification and additional insurance required by the restaurant when that employee filed a third party action. The pest control company and its carrier paid a considerable sum to an employee who was injured while doing his job.

In the slew of case law presented, the courts have made a distinction between the additional insurance requirement and that of indemnity. As to additional insurance, the common interpretation rule is once there is a contractual requirement to name someone as an additional insured on its policy, the court must look to the policy to see if there is coverage.

In a recent case of July 10, 2019, the Appellate Division decided Comcast of Garden State v. Hanover Insurance Co. The Court followed the rule and paid special attention to the policy language, showing the importance of not only knowing what the contract says but what is covered by your insurance.

The facts in this recent case showed that.

Richard Endres filed suit alleging injuries due to the negligence of JNET Communications and Comcast of Garden State, L.P., as a result of tripping over a temporary above-ground cable JNET installed while performing work as Comcast’s contractor. Comcast tendered the defense of the lawsuit to JNET’s insurer, Hanover Insurance Company. Hanover initially accepted the defense. JNET admitted it placed the cable and Comcast was dismissed. Comcast was reinstated after deposition testimony suggested that a Comcast technician replaced the cable after JNET’s initial placement. Hanover tendered the defense back. At Endres’ trial, the jury found Comcast 60% liable and JNET 40% liable.

Comcast filed suit against Hanover and JNET that Comcast was an additional insured entitled to coverage under the policy. The trial court determined that Comcast was an additional insured pursuant to its contractual obligations. Hanover and JNET appealed.

The issue before the Appellate Court was whether Comcast was an additional insured for its own negligent acts under the policy. The Court concluded that it was not.

In interpreting the policy, the Court relied upon the following language:
          Any person or organization with whom you agree. . . is an insured, but only with respect to (1) “your work” for the insured . . . [defined as] “work of operations performed by you on your behalf.

Hanover argued that Comcast was not an additional insured because the jury found Comcast 60% liable and JNET 40% liable. Hanover contended that the jury based its findings of Comcast’s liability on Comcast’s direct negligence unrelated to JNET’s work and was not vicariously liable based upon JNET’s work. Hanover argued that the policy only provides coverage “with respect to” its insured JNET’s work. It did not provide coverage for the negligent acts of another entity. It appears that there was nothing in the policy that required a specific allocation of liability, in order to demand indemnity.

In support of its claim, Comcast relied upon Franklin Mutual Insurance Co. v. Security Indemnity Ins. Co., 275 N.J. Super. 335 (App. Div. 1994) and Harrah’s Atlantic City, Inc. v. Harleysville Ins. Co., 288 N.J. Super. 152 (App. Div. 1996), but the Court drew the distinction from the issues at hand. In both those cases, the insurance policy had language that stated:
Only with respect to liability arising out of the ownership, maintenance or use of that part of the premises.

The Court held that, in those cases, coverage as an additional insured was dependent upon the construction of the insurance policy term “arising out of” which was not “capable of precise definition.”

But in the JNET insurance policy, the Court agreed with Hanover, that the policy was not ambiguous where its plain language “only with respect to” allowed additional insurance only with respect to JNET’s work. Because Comcast’s liability was not determined in reference to or in relation to JNET’s work, Comcast was not an additional insured for its own negligent acts. Here, the Courts relied upon Supreme Court decisions in the indemnity provision requiring that in order to indemnify someone for their own negligence, there must be plain language clearly expressing contrary intent.

The importance of the court’s holding is when entering into a contract and being asked to name someone as an additional insured, not only does the terms of the contract become important, but also that of your insurance policy. While in this case, Hanover was able to avoid paying for Comcast’s own negligence, the contractual provision between Comcast and JNET may have included specific indemnity language asking for such coverage. I trust that we will see many other insurance carriers rewrite the policy for the more specific language. To the business owners and those entering into these type of contracts, it is strongly encouraged to have the contracts reviewed not only by your attorney, but also, your insurance broker, who ensured that if you are agreeing to provide additional insurance, it is for what is intended.

Cooper Levenson Welcomes Young Yoon, Esquire to the Firm

Cooper Levenson is pleased to announce that Young Yoon has joined the firm. Yoonwill work in the firm’s Cherry Hill office, in the Defense Litigation Practice Group.

Yoon has significant experience with auto property damage lawsuits through trial or settlement. Young’s background also includes residential and commercial real estate transactional work.

While in law school, Yoon worked with the Community Health Law Project in Collingswood, where he handled matters involving developmentally disabled clients and tenant rights with regard to housing habitability. He also interned with the office of New Jersey Senator Robert Menendez, where he worked on mortgage modification issues for constituents and Energy Efficiency and Conservation Block Grants.

We are very happy to welcome Young to the Cooper Levenson team. His background will be a great fit for our Defense Litigation Practice Group,” said Kenneth J. Calemmo, chief operating officer of Cooper Levenson.

Yoon is admitted to the District Court of New Jersey and the Southern District of New York. He is fluent in Korean. Young  is a member of the South Jersey Korean-American Association.

Young graduated from Boston College with a Bachelor of Science in Psychology and from Rutgers School of Law with a Juris Doctor.

Cooper Levenson is a full service law firm since 1957, with 65 attorneys and offices in New Jersey, Delaware, Florida, Nevada, and New York.  For  more information, visit www.cooperlevenson.com.

How to Improve the Plight of the Truck Driver

by Saleel V. Sabnis, Esq.

The trucking industry is the heart of the U.S. economy. Nearly 71% of all the freight tonnage moved in the U.S. is on trucks. Without the industry, the economy would come to a standstill. According to the American Transportation Association, to move 10.5 billion tons of freight annually requires over 3.5 million truck drivers. Simply stated, the growth of this country’s economy is severely stunted without the trucking industry and able drivers.

Yet, one must consider the plight of this country’s truck driver. There has been a recent dip in those entering (or staying) in the profession which may be predictable upon closer scrutiny. Drivers spend weeks away from home essentially in solitude. Driver health has become an increasing concern due to long hours sitting and the lack of healthy food choices on the road. And then there is compensation. According to government data, the 1.7 million tractor-trailer truck drivers in the United States earned an average of $44,500 in 2018. Many truck drivers are paid on a per-mile basis, which means that some of them earn less than the federal minimum wage. Over the past several decades, driver pay has fallen dramatically when adjusted for inflation. The drop in salary is coupled with longer hours — as much as 80 hours are common some studies suggest— because drivers spend many more “non-driving” or “off-duty” hours than they used to at customer locations waiting to pick up cargo and make deliveries which is uncompensated time.

Indeed, drivers who work as employees of behemoth companies make a middle-class income and have better hours. But those drivers are not representative of the hundreds of thousands of other drivers who are struggling. Because driver pay is low, trucking companies have, according to some research, a turnover rate as high as 95 percent. Lobbyists for the industry are taking another route to enlarge the applicant pool by pushing the Trump administration to lower the minimum age for commercial driver’s licenses to 18 from 21 despite a strong correlation between younger drivers and accident rates.  Not surprisingly for the past several years, the trucking industry has openly declared that it can’t find enough drivers to fill existing positions (a shortage of approximately 50,000 drivers which could inflate to six figures within the next decade).

The remedy to these ills cannot be effectuated overnight. However, there are baby steps which can be taken to improve the lives and incomes of this country’s valued truck drivers. The government should require that trucking companies and freight customers compensate drivers for every hour of work, including non-driving tasks or otherwise come up with a scheme where drivers are entitled to earn minimum wage and overtime for all of their “road” hours regarding of the actual “driving time.” Of course, increased pay is central but coupling pay with a benefits package is equally prudent. An employer can discourage driver turnover by offering graduated incentives so that the longer a truck driver stays with the company, the better their benefits. Instituting career advancement or professional development programs is another to way to keep drivers happy. Handing out promotions or job title changes can have a strong effect as drivers want to feel as if they are moving up through the company. To effectively address the driver shortage, trucking companies should look for ways to entice more women, minorities, and veterans. Minorities and women are an underrepresented group within the trucking industry. Veterans are particularly important as many are looking to transition into new careers.

And then there is the general branding of the industry as a whole. Operations managers or safety directors should utilize a more strategic approach in using social media for driver recruitment. Posting driver positions on social media channels may seem obvious in 2019 but trucking companies should not only use social media to recruit drivers; they use social channels to share information on their company culture as well and express who they are as a company to potential drivers via current employee testimonials and company mission statements.

For all the talk that self-driving trucks one day might render these issues moot, the reality is that truck drivers are not going away anytime soon. Just look around you. Everything you see has probably seen the inside of a truck in some form. It’s time that we take care of our valued truck drivers.

 

Nick Sansone to speak at Claims & Litigation Management Alliance (CLM) in Orlando

Nicholas Sansone, a partner with Cooper Levenson, will speak at the Claims and Litigation Management Alliance (CLM) Annual Conference in Orlando, FL. The conference will be held from March 13 – 15, 2019. The panel, entitled “Ethical Conundrum: Can Artificial Intelligence Truly Make the ‘Critical Decision?’” will be held on March 15 at 10:40 a.m.

This panel explores the issues surrounding the incorporation of Artificial Intelligence (AI) into our lives.  Examples include predictive design in construction, robotic surgical equipment, self-driving cars, and legal software performing document review, research, and legal analysis.  If errors or omissions, defects, and/or injuries result from decisions made by AI-driven programs, where does the potential chain of liability end?  Further, with insurance professionals evaluating such responsibility and potentially relying upon AI to analyze valuation following accidents/claims, is the AI component a reliable defense if bad faith is alleged?  These scenarios raise the question of whether it was the AI or the humans behind the AI.  Through all sectors, there is a human element involved – from program development, entering data, and managing the output.  As it relates to claims handling and litigation, who makes the “critical decision” as to the outcome in a given situation?  Who should be making the “critical decision?” Further, AI is a function of algorithms evaluating, processing and applying vast amounts of data.  Does AI account for subjective considerations or ethical concerns?  Could it? Does potential bias of the AI developer factor in?  Litigation challenges are arising in the industry while the law and regulations lag. #CLM2019

More information about the conference is at https://www.theclm.org/

Michael Mitrovic, Esquire joins Cooper Levenson

Cooper Levenson is pleased to announce that attorney Michael Mitrovic has joined the firm as Of Counsel to the Insurance Defense Litigation Practice Group.

“Mike is an accomplished attorney and a recognized insurance industry executive. He has held positions of the highest level in global insurance companies, and his significant knowledge in the areas of claims management, as well as transactional liability and tax liability underwriting, will make him a great addition to the Cooper Levenson team,” said Kenneth J. Calemmo, chief operating officer.

Mitrovic served as President of Global Claims for Ironshore Inc. A recognized insurance industry executive, his career spans nearly forty years with extensive experience in every aspect of the insurance industry. Mitrovic was responsible for launching the company’s U.S. operations and oversaw the development of specialty product lines and requisite regulatory approvals.  Prior to joining Ironshore, he served for more than 22 years with AIG; most recently in the roles of Vice President of Claims and President of AIG Worldwide Financial Lines. He also co-founded and was President and Chief Operating Officer of Axcelera/ Global Specialty Risk.

Mitrovic has received numerous awards for his contributions as a leader in the business world and insurance industry. In 2014, Penn State University Liberal Arts Alumni Society honored him with the 2014 Outstanding Liberal Arts Alumni in Business Award, for success in the business community and influence as a leader. Mitrovic also received the Claims Executive of the Year Award, an award sponsored by major insurance companies and brokers that recognizes years of service, contributions to the insurance industry, and the example of leadership and professionalism set for peers and colleagues.

Mitrovic holds a B.A. from Pennsylvania State University, an M.A. from New York University and a Masters in International Affairs from Columbia University. He received a J.D. from the University Of Richmond School Of Law.

Read more about Michael here.

 

When does the six year Statute of Limitations begin?

By Carmelo T. Torraca and Elizabeth A. Kaufman

On September 14, 2017, in The Palisades at Fort Lee Condo Ass’n v. 100 Old Palisade, LLC, 2017 N.J. Lexis 845,  the Supreme Court of New Jersey reversed and remanded to the trial court the Appellate Divisions decision in Palisades at Fort Lee Condo Ass’n v. 100 Old Palisade, LLC, 2016 N.J. Super. Unpub. LEXIS 193, wherein the Appellate Court was faced with an appeal from a Condominium Association which lost its cause of action against various contractors who created the defects in the building prior to the Condominium Association’s formation due to expiration of the six-year Statute of Limitations.

In the 2017 decision, the Court reversed and remanded the case because it was unclear as to exactly when notice of the six year Statute of Limitations for the construction defects began to accrue.  The high Court held that “neither the trial court nor the Appellate Division applied the correct legal standard for determining when the construction-defect actions accrued pursuant to N.J.S.A. 2A:14-1. Although N.J.S.A. 2A:14-1’s six year statute of limitations typically commences upon substantial completion of a structure, the discovery rule applies to the accrual of a claim under N.J.S.A. 2A:14-1.  Under that rule, the limitations clock does not commence until a plaintiff is able to discover, through the exercise of reasonable diligence, the facts that form the basis for an actionable claim against an identifiable defendant.” Palisades(2017) at 11 citing Caravaggio v. D’Agostino, 166 N.J. 237, 246(2001).  However, the word “accrual” is not defined within N.J.S.A. 2A:14-1.

The Supreme Court held,

“ the date that a structure is deemed substantially complete oftentimes is when a cause of action accrues because some construction defects will be readily apparent on inspection and therefore the plaintiff will have a reasonable basis for filing a claim. But many construction defects will not be obvious immediately.  In such instances, a cause of action does not accrue until the plaintiff knows or, through the exercise of reasonable diligence, should know of a cause of action against and identifiable defendant.  A plaintiff who is a successor in ownership takes the property with no greater rights than an earlier owner. If the earlier owner knew or should have known of a cause of action against an identifiable defendant, the accrual clock starts then.”

By way of history, this 11-story parking structure and 30-story residential tower was purchased in 1998.  Defendant contractors then began work improving the residential tower.  Afterwards, the property operated as a rental property for approximately two years.  On June 28, 2004, the property was sold to 100 Old Palisade, LLC, which began the process of converting the property into a condominium form of ownership pursuant to the New Jersey Condominium Act, N.J.S.A. 46:8B-1, et. seq.

In January 2005, Old Palisade issued a Public Offering which included an engineering report prepared by Ray Engineering, Inc.  A Master Deed was created, in accordance with the condominium rules, providing that the Association, through its board members, was responsible for the maintenance and repair of the common areas of the property as defined by the Master Deed.  Old Palisade retained control of the Board until members were chosen by unit owners.  Upon the sale of 75% of the units, full control of the Board was transferred to the unit owners.

In July 2006, following the sale of the required number of units, the unit owners gained full control of the Association’s Board.  The Association then retained Falcon Engineering Group to undertake an engineering evaluation of the property.  In May 2007, Falcon produced a report which identified various construction defects in the property, including defects in the exterior wall, parking garage, roof, and plaza terraces.  Falcon provided the report to the Association Board on June 13, 2007.

Plaintiff filed its first of eight Amended Complaints on March 12, 2009, asserting claims against various parties, including the persons and entities involved in the conversion of the property to condominium ownership.  Plaintiff also asserted construction defect claims against various contractors who performed work on the property before its conversion.

The parties all agreed that the substantial completion date of the contract for the work was May 1, 2002, well beyond the six-year statute of limitations as required by N.J.S.A. 2A:14-1 for a Complaint filed in 2009.  The Trial Court, relying upon the substantial completion date, found that the Complaint was filed untimely and granted the summary judgment in favor of the Construction Defect Defendants.  The Judge wrote that the Defendant Contractors could not have reasonably anticipated that the Association would eventually be formed and they would be “forever liable” for the alleged construction defects, notwithstanding the six-year statute of limitations.

The Appellate Court decided this solely upon a legal issue, therefore it owed no deference to the Trial Court’s “interpretation of the law that flows from the established facts.”  The Court cited to N.J.S.A. 2A:14-1 which, in pertinent part, provides that claims for tortious injury to real property or for a recovery under a contract claim “shall be commenced within [six] years after the cause of action shall have accrued.”  The statute does not define when a cause of action accrues and that issue has “been left entirely to the judicial interpretation and administration.”[1]

The Appellate Court began its analysis the same as the lower Court by observing that the statute of limitations on an action for deficiencies in design or construction commences to run upon substantial completion of the structure.[2]  However, the date of accrual may be delayed by application of a discovery rule or other equitable considerations.[3]  In effect, the date the limitation began to run is when the Plaintiff knew or should have known of the defect.  The Court could have easily relied upon the Falcon 2007 report to initiate this accrual period indicating that the more specific report identifying the defects served as Plaintiff’s discovery of damages.  However, the Court was faced with the difficulty that the Ray Engineering report also identified, albeit not to the same specificity, some of these defects.  Instead, the Court placed significant weight upon the formation of the Association.

The Court cited to the Condominium Law stating that the Association has the responsibility for “maintenance, repair, replacement, cleaning and sanitation of the common elements” of the condominium.  The Court also acknowledges that an individual unit owner can file a derivative action on behalf of the Association against the contracting defendants for construction defects in the common elements; however, the unit owners were not compelled to do so.

Indeed, it would be unreasonable for the statute of limitations to run on the claim of a condominium association, unless a unit owner, or group of unit owners, took on that responsibility.  We are convinced that, under the circumstances, the statute of limitations could not begin [to] run on the Association’s claims until the unit owners had full control of the governing Board.

This definition of accrual based upon the formation of the party who initiated the claim is a new concept and not previously cited by other case law.  The Court’s reliance upon both the formation of the Association, which was in 2005, and the 2007 Falcon report was a basis for overturning the Trial Court’s granting of the summary judgment.

The Court also went on to disagree with the Trial Court’s assertion that it would be unfair to allow the Association to assert its claim against Defendant contractors because Defendants could not have reasonably anticipated that the property would have been converted to a condominium, that the Association would eventually be formed, and that they would be “forever liable” for the alleged construction defects.  The Appellate Court relied upon N.J.S.A. 2A:14-1.1(a), providing for a Statute of Repose of ten years terminating all construction defect claims irrespective of the conditions.  This ten-year limitation for the Statute of Repose “generally commences one day after the issuance of the Certificate of Substantial Completion for the project.”  The purpose of the Statute of Repose was to limit the expanding liability of contractors, including an expansive application of the discovery rule.

Fortunately, the Supreme Court disagreed. The Supreme Court rejected the concept of the Statute of Limitations beginning when the suing party, in this case the Association was created. Rather, the Supreme Court reaffirmed that the Statute of Limitations accrues when anyone in the ownership chain knew or reasonably should have known of a construction defect based upon “objective evidence.”  A subsequent owner has no better standing in the Statute of Limitations analysis than any of the previous owners.

[1] Quoting, Russo Farms v. Vineland Bd. of Ed., 114 N.J. 84, 98 (1996).

[2] Mahony-Troast Constr. Co. v. Supermarkets Gen. Cor., 189 N.J. Super. 325, 329 (App. Div. 1983).  See also, Russo Farms, supra, 144 N.J. at 115-116.

[3] Trinity Church v. Lawson-Bell, 394 N.J. Super. 159 (App. Div. 2007).

Random Acts of Violence Exclusion to the Negligent Security Claim

Since 1997, New Jersey has shifted its standards for determining a property owner’s duty to a victim of a crime on its property to the much broader “totality of the circumstances.” In Clohesy v. Food Circus Supermarkets, Inc., the New Jersey Court adopted the totality of the circumstances analysis as set forth in the Restatement (2 nd ) of Torts §344 Comment F (1965). This standard encompasses all matters considered by “a reasonable prudent person” and incorporate fairness considerations for imposing the duty, including foreseeability of the third-party conduct, and “whether the premise owner exercised reasonable care under the circumstances.” Id. In adopting this analysis, the Court held that the foreseeability of crime on the property was crucial, although not dispositive, element, which subsumes many of the concerns acknowledged to impose this duty.

This decision in 1997 basically broadened the previous rule and imposed upon landowners a duty to victims when the landowners could reasonably foresee a crime could occur on its property. Once it is foreseeable, reasonable security methods must be established to protect a plaintiff from a would be assailant.

Clohesy involved an abduction and murder of a 79-year- old woman from a shopping center parking lot. The Court held that it was sufficiently foreseeable that an individual would enter in a parking lot and assault a customer, given that there were approximately 60 criminal incidents on or near the premises over a 2 ½ year period preceding the abduction. The Court concluded that these criminal incidents escalated in nature and became a “high crime” status associated with parking lots nationwide. Surprisingly, there were no other previous abductions or murders in that shopping center parking lot.

This has led to a position taken by many plaintiffs’ counsel that any crime could be foreseeable once criminal statistics show other unrelated crimes in the area. Basically, the criminal statistics would show that there were crimes against other people in the area and are placing the landowner on notice of criminal activity.

Significantly, in two recent decisions, the Appellate Court has scaled back this analysis. Initially, in Peguero v. Tau Kappa Epsilon, the Appellate Court in 2015 extinguished the Court’s foreseeability argument in Clohesy and held it was not reasonably foreseeable that an unknown third-party would shoot a guest during a social gathering at a fraternity house in the absence of a previous pattern of criminal conduct on or near the premises. In assessing the totality of the circumstances, the Appellate Court found that the relationship between the parties and the shooter was transitory and there was no proof that the fraternity defendants had any particular knowledge of the unknown assailant. Moreover, and in contrast of a significant statistical proof or prior criminal activity presented in Clohesy, the Court found that the record was devoid of any alarming data relating to the prior incidents around the house. This unfortunate shooting was noted as a random act of violence.

In a more recent decision, Higgins, et al. v. Holiday Inn & Conference Center, the Appellate Division decided in 2017 to affirm a summary judgment motion denying that Holiday Inn had a legal duty owed to the plaintiffs as a result of this shooting.

The facts in this case was that between February and July 2010, plaintiff, in his capacity as a disc jockey, hosted and performed a weekly “Caribbean Night” event held at the Holiday Inn located in Edison, New Jersey. On July 11, 2010, at approximately 3:00 a.m., plaintiffs were outside the Holiday Inn smoking when an unidentified masked gunman approached, shot and wounded them. In this unreported decision, the Court discerned that in the ten-year period from July 2, 2000 to the date of the incident, there were no reported shooting incidents at the Holiday Inn. There were other crimes including fights and thefts, but not to an alarming number.

The Court, in viewing the evidence in a light most favorable to the plaintiffs, were unpersuaded by the totality of the circumstances presented giving rise to a duty to the Holiday Inn to take reasonable precaution to protect them from the incident; citing to “a random act of violence perpetrated outside the inn.”

These line of cases breathe new life into the defense of a negligent security claim and show an additional defense in the arsenal of the landowners if the facts truly present a random act of violence.

Elizabeth A. Kaufman, Esq. Joins Cooper Levenson

Attorney Elizabeth A. Kaufman has joined the Defense Litigation Practice Group at Cooper Levenson. Kaufman will work in the firm’s Atlantic City and Cherry Hill offices.

“Elizabeth’s experience in a wide variety of defense litigation matters will ideally complement the Cooper Levenson team,” said Kenneth J. Calemmo, chief operating officer of Cooper Levenson.

Kaufman came to the firm from Delany McBride in Woodbury, NJ, where she prosecuted and defended state civil litigation cases for automobile negligence cases, subrogation matters, issues of coverage and more. Her experience also includes work for a “captive” Defense firm as well as personal injury, commercial, real estate, probate and non-profit matters in state and federal court.

Kaufman has served as a mediator for the Philadelphia Court of Common pleas and various private entities. Kaufman graduated from Drew University with a B.A. and from the University of Bridgeport School of Law (Quinnipiac) in Bridgeport, CT. Kaufman is admitted to practice in New Jersey and Pennsylvania.

Appellate Court of New Jersey approved for publication an appeal filed by Ronald G. Lieberman on Dec 5, 2016

In sum, the Appellate Division held that regardless of the parties’ agreement for a final restraining order to continue, if it was void from the start, it was void for settlement purposes. Thus, the Appellate Division agreed with me that judges must find that an act of domestic violence occurred and that victim needs protection even if the defendant consents to the entry of the final restraining order. “A domestic violence final restraining order may not be entered by consent or without a factual foundation.”

Link to APPELLATE

A REVIEW OF NOONE v. AKSHAR LACKAWANNA STATION HOSPITALITY, L.P.: APPELLATE COURT UPHOLDS SUMMARY JUDGMENT MOTION IN A NEGLIGENT SECURITY MATTER WHERE PLAINTIFFS ARE DEEMED TRESPASSERS

By: Carmelo T. Torraca, Esquire

On August 19, 2016, in the unpublished decision of Noone v. Akshar Lackawanna Station Hospitality, L.P.[1], the Superior Court of Pennsylvania, Appellate Division, upheld the Trial Court’s granting of a summary judgment motion in a negligent security/victim’s rights claim. The rationale expressed by the Court is that the business invitee relationship ceased and allowed Plaintiff to be considered a trespasser on the site for which a different duty is owed.

The facts briefly inform that Plaintiff and his friend were patrons of the Traxx Bar & Grill in Scranton, Pennsylvania. Traxx Bar & Grill is located at the Radisson Station Hotel. Various fights occurred in the bar during the evening, and management notified the police and told all patrons to leave. Traxx closed early that evening, around midnight. Plaintiff and his associate walked to another bar, about two blocks away. They left their car at the Radisson parking lot. Radisson posted signs that read “Parking While At Radisson Hotel. All Others Will Be Towed At Vehicle Owner’s Expense” and “Guest Parking, Unauthorized Vehicle Towed Away.”


[1]Docket No. 2016 Pa. Super. Unpub. Lexis 3023.

Plaintiff and his associate closed the other bar at approximately 2:00 a.m. and returned to the Radisson parking lot at approximately 2:30 a.m. At that time, another fight occurred in this parking lot. The assailant was never identified; however, the Plaintiff suffered a triple fracture of the cheekbone and over 100 stitches, scarring, jaw clicking, headaches, and related injuries. Plaintiff brought this action against the various Defendants for negligent maintenance of security in this parking lot.

The Trial Court granted summary judgment in favor of the businesses and landowners, reasoning that by keeping Plaintiff’s vehicle in the lot after hours when Plaintiff was told to leave and did, in fact, leave, Plaintiff ceased being a business invitee to the site. Even upon Plaintiff’s return, it was not to patronize any of the businesses located in the lot; rather, it was for Plaintiff’s own convenience to pick up his vehicle. At this point, the Court considered Plaintiff a trespasser. As a trespasser, the Court concluded that he was only owed a duty to avoid “willful misconduct or wanton negligence.”

On appeal, Plaintiff argued that the Trial Court erred by concluding that Plaintiff was a trespasser versus a business invitee and that there existed genuine issues of material fact for a jury to determine. Instead, the Appellate Court upheld the Trial Court’s ruling finding that after the Defendants closed the bar, directing their patrons to leave, Plaintiff did leave and ceased becoming a business invitee of the Defendants. Additionally, upon leaving their vehicle at the Radisson parking lot, out of personal convenience rather than to repatronize the businesses, they became trespassers to the lot. Finding that Plaintiff was no longer a business invitee to the Defendants, the Defendants owed no duty to the Plaintiff other than to avoid wanton and willful negligent misconduct. The Court even went so far as to acknowledge that while generally the determination of whether someone is an invitee, licensee, or trespasser is a question for the jury, there was sufficient information here for the Court to make that determination.

The significance of this decision is that in New Jersey, the designation of business invitee, trespasser, or licensee at a particular premises have become less critical in determining the duty owed to a plaintiff by the landowner in negligent security cases. In Gonzalez v. Safe & Sound, the Supreme Court of New Jersey further eroded that distinction. However, it is clear that in Pennsylvania, the designee of the victim as a trespasser still holds significant merit in order to defend these negligent security claims.