PREMISES LIABILITY OVERVIEW DESK REFERENCE

Transcription

1 PREMISES LIABILITY OVERVIEW DESK REFERENCE NEW JERSEY & NEW YORK Scott R. Behman H. Charles Hambelton Sharmili P. Das Daniel J. Shanahan Phillip J. Lagana William M. Boyle MASSACHUSETTS 600 West Cummings Park, Suite 5600 Woburn, MA TEL: (800) TEL: (781) FAX: (781) NEW YORK 125 Maiden Lane, Suite 15C New York, NY TEL: (212) FAX: (212) CONNECTICUT 10 Alexander Drive Wallingford, CT TEL: (860) FAX: (860) RHODE ISLAND 245 Waterman Street, Suite 105 Providence, RI TEL: (401) FAX: (401) Also active offices and/or practicing attorneys in the following states and Courts: Florida, Maine, New Hampshire, New Jersey, Vermont, and the Mohegan Nation Gaming Tribal Courts (Casinos).

2 DESK REFERENCE PREMISES LIABILITY About Behman Hambelton, LLP Behman Hambelton LLP is a mid-sized, regional litigation firm representing clients throughout New Jersey and New York. While we approach all client matters with an eye for opportunities to obtain as prompt a favorable resolution as is possible, we also design a litigation plan for each matter to prepare it for trial, if ultimately necessary. We have found that having a trial game plan for each litigated matter right from the outset actually serves to expose the weaknesses in the opposing party s claims and leads, in many cases, to the settlement of such claims upon terms that are very favorable to our clients. Should resolution by settlement not be possible, we are nevertheless fully prepared to take the matter to verdict. Our experienced trial attorneys have developed a reputation for excellence in litigating matters in both State and Federal Courts on behalf of insureds, insurers and self-insureds, as well as individuals and businesses, concerning an array of complex legal issues. Contents: New Jersey New York Dedication to serving the needs of its clients is the backbone of Behman Hambelton LLP. Behman Hambelton prides itself on providing progressive and economical solutions to the needs of clients in all areas of the firm's practice. We take a macro view of our clients' needs to address root causes of issues and to formulate plans to avoid future problems. Our proven litigation track record and our ability to analyze trends in the legal community provide confidence to our clients and has allowed us to develop a reputation as zealous advocates. We strive to excel in all areas of our practice with client satisfaction, as always, our paramount goal. Behman Hambelton, LLP Desk Reference We hope that you find the information in this Desk Reference useful. You should be aware that the information provided in the Desk Reference is presented in a general format and is not a comprehensive summary of all the issues that may be applicable. Furthermore, laws and regulations are constantly changing. These changes may not be incorporated into this version of the Desk Reference. With these factors in mind, it is important that you do not rely solely on the information provided. We would be pleased to help you review all pertinent information and can assist you in developing a comprehensive litigation strategy. For More Information If you have any questions, please contact: 600 West Cummings Park, Suite 5600 Woburn, MA TEL: (781) FAX: (781)

3 DESK REFERENCE PREMISES LIABILITY Table of Contents NEW JERSEY Premises Liability Law Synopsis...1 NEW YORK Premises Liability Law Synopsis...5

4 NEW JERSEY PREMISES LIABILITY LAW SYNOPSIS A. STATUTE OF LIMITATIONS (NEGLIGENCE) Two years. N.J. STAT. ANN. 2A:14-2 (2014). B. PREMISES LIABILITY 1. Slip and Fall A proprietor of premises to which the public is invited to do business is under a duty to use reasonable care to maintain the premises in a condition reasonably safe for the business invitee s use. Nelson v. Great Atlantic & Pacific Tea Co., 48 N.J. Super. 300, 306 (App. Div. 1958). In order to establish liability of a proprietor of premises to which the public is invited, for injuries sustained by a business invitee because of the condition of premises, the business invitee must show that the condition of the premises was unsafe. Bohn v. Hudson and Manhattan R. Co., 16 N.J. 180, 185 (1954). The invitee must also show that the proprietor was at fault in failing to remedy the situation after having knowledge of the condition or after existence of the condition for such length of time as reasonably to have resulted in knowledge and correction had the proprietor been reasonably diligent. Id. at Snow and Ice A business owner owes its business invitee a duty of exercising reasonable care to maintain the parking lot in reasonably safe condition, and, as part of that general obligation, is under a duty to exercise reasonable care to keep the lot free of ice and snow. Bates v. Valley Fair Enters., Inc., 86 N.J. Super. 1, 6 (1964). 1

5 3. Negligent Security In negligent security cases, it is not necessary that the particular consequences of the negligent act be foreseen so long as it is foreseeable that some injury may ensue. Instead, proximate cause may be established by demonstrating that according to the common experience of mankind, the resulting injury was a reasonably foreseeable consequence of the negligent act. Nebel v. Avichal Enters., Inc., 704 F.Supp. 570, (1989) (citing Chomatopoulos v. Roma DeNotte Soc. Club, 212 N.J. Super. 447, (1985)) (holding that failure of illegal gambling establishment to provide private security force that would deter and/or control foreseeable altercations among its patrons was a proximate cause of gambler s injury). C. JOINT TORTFEASORS/JOINT AND SEVERAL LIABILITY Each tortfeasor is liable for his proportionate share of damages according to his own degree of fault. N.J. STAT. ANN. 2A:53A-3 (2014). When any one joint tortfeasor pays a judgment in whole or in part, he is entitled to recover contribution from the other joint tortfeasor(s) for the excess paid over his share. Id. D. COMPARATIVE/CONTRIBUTORY NEGLIGENCE Under New Jersey s comparative negligence doctrine, a plaintiff may recover if his negligence contributed to the damages provided his negligence was not greater than the party or parties against whom recovery is sought (i.e., less than or equal to fifty percent). However, the damages to which an injured party would be entitled will be diminished by the percentage of negligence attributable to the recovering party. N.J. STAT. ANN. 2A: et. seq. (2014). 2

6 E. PRE-JUDGMENT INTEREST Pursuant to Rule 4:42-11(b) of the Rules Governing the Courts of the State of New Jersey, pre-judgment interest rates in tort actions are the same as the post-judgment interest rates. The annual pre-judgment and post-judgment interest rate is equal to the average rate of return for the State of New Jersey Cash Management Fund for the preceding fiscal year, rounded off to the nearest one-half percent. F. SETTLEMENT PRACTICES Initially in the litigation, settlement proceedings take the form of a court ordered, non-binding mandatory mediation, a process by which the parties appear before a private, neutral mediator, who assists them in attempting to resolve their dispute by voluntary agreement. Both sides present their case and are awarded a few hours of free mediation. If the parties believe the mediation could be helpful and beneficial, they are free to continue the mediation at cost to the parties. Towards the end of the litigation and post discovery, a mandatory, non-binding Arbitration is scheduled by the Court. A neutral Arbitrator (usually an experienced attorney in the venued County) renders a decision based upon the statements, facts and informal testimony presented by both parties. The Arbitration award is usually a means of getting the parties to discuss settlement. All parties, if dissatisfied with the Arbitration award, have thirty days to file a trial de novo which rejects the Arbitration award and requests a trial of the issues. The trial de novo filing must be served on all parties and if it is not so served, the judgment is entered. If no party files a trial de novo, judgment is entered against the defendant for the amount awarded. Rejection of the arbitrator s award makes one liable for 3

7 reasonable costs, including attorney s fees, incurred after rejection of the award by those parties not demanding a trial de novo Behman Hambelton LLP. 4

8 NEW YORK PREMISES LIABILITY LAW SYNOPSIS A. STATUTE OF LIMITATIONS (NEGLIGENCE) Three years. CPLR 215 (2014). B. PREMISES LIABILITY 1. Slip and Fall New York applies a single standard of reasonable care under circumstances whereby foreseeability is the measure of liability. Basso v. Miller, 40 N.Y.2d 233, 241 (1976); Quinlan v. Cechini, 41 N.Y.2d 686, 689 (1977). The duty owed is that of reasonable care for safety of all persons reasonably to be expected upon owner possessor s land. Farkas v. Cedarhurst Natural Food Shoppe, Inc., 41 N.Y.2d 1041, (1977). With respect to a foreign substance on the floor of a business that invites customers, such as a supermarket or store, proof of notice of the substance is essential to recovery by a customer who slipped and fell as a result of the substance. Cameron v. Bohack, 27 A.D.2d 362, 364 (1967). 2. Snow and Ice Landowners are not responsible for failure to remove snow and ice until a reasonable amount of time elapsed after cessation of the storm (i.e., there can be no liability for failure to remove snow and ice where a snowstorm is still in progress at the time of the slip and fall). Cerra v. Perk Dev., 602 N.Y.S.2d 277, 277 (1993). A building owner is not liable in tort for injuries sustained by a pedestrian who slips and falls on snow and ice which naturally accumulated on a sidewalk in front of its premises because the landlord owes no duty to the public to remove naturally accumulated snow and ice. Gerber v. City of New York, 719 N.Y.S.2d 650, 651 (2001). 5

9 An out-of-possession landlord may incur liability in tort for injuries sustained by a pedestrian who slips and falls on snow and ice that naturally accumulates on the sidewalk in front of the premises if the landlord attempted to remove snow and ice and made the condition more hazardous. Id. An owner must be notified of the icy condition, evidence must be adduced as the origin of the icy patch on which the pedestrian allegedly slipped and the owner must have sufficient time to remedy the dangerous condition. Simmons v. Metro. Life Ins. Co., 84 N.Y.2d 972, 973 (1994). 3. Negligent Security New York also focuses on the foreseeability of the injuries sustained in a negligent security claim and does not impose a requirement that a business be a guarantor of its invitees safety. Where a person was assaulted during a robbery attempt on the grounds of the defendant s apartment complex, the Court found that there was no duty to protect against such incidents beyond the security force patrols provided by the defendant. Leyva v. Riverbay Corp., 620 N.Y.S.2d 333, 337 (1995). C. JOINT TORTFEASORS/JOINT AND SEVERAL LIABILITY A statutory right of contribution exists between or among joint tortfeasors in accordance with their relative degrees of fault. CPLR 1401 (2014). D. COMPARATIVE/CONTRIBUTORY NEGLIGENCE New York is a pure comparative state. CPLR 1411 (2014). A plaintiff can recover as long as he is not 100% at fault. Id. The plaintiff s recovery damages are reduced in accordance with his degree of fault. Id. 6

10 E. PRE-JUDGMENT INTEREST/RESOLUTIONS 1. Pre-Judgment Interest Nine percent per annum. CPLR 5004 (2014). 2. Offer of Compromise A defendant may offer the plaintiff judgment for a specific sum. CPLR 3221 (2014). The plaintiff may accept or refuse; the plaintiff s acceptance results in judgment and closes the case. Id. If the plaintiff rejects the offer and then does no better at the time of the trial, the plaintiff loses costs from the time of the offer and must pay the defendant s costs as of that time. Id. F. SETTLEMENT PRACTICES In New York, the notice of settlement procedure is very localized and may vary from county to county; however, the common aspect of the procedure is the settlement conference. A settlement conference is required to discuss material issues of the case. Attendance at the conference is mandatory. No awards are made as a result of settlement conferences, and if the matter is not settled, the case proceeds to trial Behman Hambelton LLP. 7