PREMISES LIABILITY OVERVIEW DESK REFERENCE

Transcription

1 PREMISES LIABILITY OVERVIEW DESK REFERENCE NEW ENGLAND, NEW JERSEY & NEW YORK Scott R. Behman H. Charles Hambelton Sharmili P. Das Daniel J. Shanahan Mark R. Cramer William M. Boyle Katherine A. Nickerson Kevin H. O Neill [email protected] MASSACHUSETTS 600 West Cummings Park, Suite 5600 Woburn, MA TEL: (800) TEL: (781) FAX: (781) NEW YORK 305 Broadway, 7 th Floor New York, NY TEL: (212) FAX: (212) CONNECTICUT 10 Alexander Drive Wallingford, CT TEL: (860) FAX: (860) RHODE ISLAND 91 Friendship Street, Suite 1 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 England, 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: Connecticut Maine Massachusetts New Hampshire New Jersey New York Rhode Island Vermont 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 CONNECTICUT Premises Liability Law Synopsis...1 MAINE Premises Liability Law Synopsis...5 MASSACHUSETTS Premises Liability Law Synopsis...9 NEW HAMPSHIRE Premises Liability Law Synopsis...13 NEW JERSEY Premises Liability Law Synopsis...16 NEW YORK Premises Liability Law Synopsis...20 RHODE ISLAND Premises Liability Law Synopsis...23 VERMONT Premises Liability Law Synopsis...26

4 CONNECTICUT PREMISES LIABILITY LAW SYNOPSIS A. STATUTE OF LIMITATIONS (NEGLIGENCE) Two years. CONN. GEN. STAT (2014). B. PREMISES LIABILITY 1. Slip and Fall In general, there is an ascending amount of duty owed by the possessor of land to the following classes of persons: trespassers; licensees; and invitees. The common law distinctions regarding increasing standards of care owed to trespassers, licensees and invitees are recognized. A social invitee is entitled to the same standard of care as a business invitee. CONN. GEN. STAT a (2014). An individual s status is generally a question of fact. Roberts v. Rosenblatt, 146 Conn. 110, 112 (1959). 2. Snow and Ice Connecticut courts apply a negligence standard grounded on whether a landowner knew, or in the exercise of a reasonable oversight ought to have known, of the existence of the dangerous condition and failed to exercise reasonable care to provide against injury by reason of it. Reardon v. Shimelman, 102 Conn. 383, 389 (1925). An accumulation of ice or snow upon a common approach to a tenement house is a dangerous condition for which a landlord may be liable for injuries caused by it if the aforementioned negligence standard is met. Id. Significantly, under the leading Connecticut case of Kraus v. Newton, a landowner is not liable for falls occurring during an ongoing snowstorm. 211 Conn. 191, (1989). Nevertheless, in Kraus, the Court held that liability could arise during an ongoing storm if the 1

5 fall resulted from a dangerous or defective condition that existed prior to the storm. Id. at 198. Thus, there could be liability if a plaintiff slipped on an old patch of ice under newly fallen snow during an ongoing storm. Id. 3. Negligent Security The proprietor of a place of public amusement has a duty to maintain order on his or her premises and may be held liable for injuries resulting from the dangerous activities of a third person, whether such acts are accidental, negligent, or intentional, if he or she does nothing to restrain or control such conduct after he or she knows, or in the exercise of reasonable care could have known, of it. The proprietor must exercise due care to protect his patrons from assaults by other patrons, at least if the proprietor had knowledge of conduct which would naturally result in an injury, or if he might reasonably have anticipated an assault. Where there has been a more or less sudden, direct attack, liability generally is not imposed, for the reason that the proprietor could not reasonably have anticipated the occurrence. 27 AM. JUR. 2D Entertainment and Sports Law 57 (2001). See Hopkins v. Conn. Sports Plex, LLC, 2006 Conn. Super. LEXIS 1710 at *7-8 (2006). Courts will also consider an insufficiency in the number of security personnel, security personnel s improper conduct under the circumstances, and other failures to adequately warn and protect patrons in cases where the owner or operator of property is held liable for negligence arising from an assault. Id. at *12. See also Restatement (Second) of Torts 344, cmt. f (1965). C. JOINT TORTFEASORS/JOINT AND SEVERAL LIABILITY Each joint tortfeasor is liable for his proportionate share of the plaintiff s total damages in accordance with the degree of negligence found against him. CONN. GEN. STAT h(c) (2014). 2

6 D. COMPARATIVE/CONTRIBUTORY NEGLIGENCE A plaintiff s recovery is barred if his negligence is greater than the defendant s. CONN. GEN. STAT h(b) (2014). Otherwise, the plaintiff s recovery is reduced by the degree of his fault. Id. E. PRE-JUDGMENT INTEREST/RESOLUTIONS 1. Pre-Judgment Interest There is no pre-judgment interest absent the filing of a statutory offer of compromise in Connecticut. CONN. GEN. STAT a(c) (2014). 2. Offer of Compromise A defendant has thirty days to accept an offer of compromise; in the event that a plaintiff's offer of compromise is not accepted and he thereafter recovers an amount equal to or greater than the sum stated in the offer, the court must add eight percent interest from the date of filing of the complaint to the date of the judgment, assuming the offer of compromise was filed within eighteen months after the date the complaint was filed. CONN. GEN. STAT a(c) (2014). F. SETTLEMENT PRACTICES The settling defendant shall tender all sums due no later than thirty days after receipt of a duly executed release and a withdrawal discontinuing any court action. CONN. GEN. STAT c (2014). If the insurer fails to promptly pay all sums, a default judgment will be entered against such insurance company twenty days after the filing of a motion for default judgment with the court and service upon the representative of the insured with whom settlement was reached or the defendant with whom settlement was reached. Id. If the 3

7 insurer fails to tender settlement proceeds within the time limits, interest shall be computed at a rate of twelve percent per year from the date such time limit expired. Id Behman Hambelton LLP. 4

8 MAINE PREMISES LIABILITY LAW SYNOPSIS A. STATUTE OF LIMITATIONS (NEGLIGENCE) Six years. ME. REV. STAT. tit. 14, 752 (2014). B. PREMISES LIABILITY 1. Slip and Fall An owner or occupier of land owes the same duty of reasonable care under the circumstances to all persons lawfully on his land. Poulin v. Colby Coll., 402 A.2d 846, 851 (Me. 1979). An owner or occupier is not an insurer of the safety of his lawful visitors. Id. at 848; Orr v. First Nat. Stores, 280 A.2d 785, 792 (Me. 1971). The standard of care owed to a social invitee is the same standard of care owed to a business invitee. ME. REV. STAT. tit. 14, 159 (2014). Maine does not follow the mode of operation rule which in essence infers notice of potentially dangerous conditions to self-service store operators based upon prior experience that customers, while self-serving, can create hazardous conditions in the premises. Dumont v. Shaw s Supermarkets, Inc., 664 A.2d 846, 848 (Me. 1995). However, a store owner who is aware of the existence of a recurrent condition that poses a potential danger to invitees may not ignore that knowledge and fail reasonably to respond to the foreseeable danger of the likelihood of a recurrence of the condition. Id. at 849. The only duty owed to trespassers is to refrain from wanton, wilful, or reckless conduct. Cogswell v. Warren Bros. Road Co., 229 A.2d 215, 218 (Me. 1967). 2. Snow and Ice The discharge of the duty to remedy slippery conditions caused by accumulations of snow or ice rests upon the owner or occupier of the land to exercise reasonable care for the 5

9 safety of his business invitees and carries with it the necessary implication that the owner or occupier shall have reasonable notice of the need for, and a reasonable opportunity to take corrective action for the safety of his invitees. Isaacson v. Husson Coll., 297 A.2d 98, 105 (Me. 1972). An invitee who slips on a foreign substance on the floor may prove the premises owner s or operator s negligence by establishing one of three things: 1) owner or operator caused the substance to be there; 2) owner or operator had actual knowledge of the existence of the substance; or 3) the substance was on the floor for such length of time that the owner or operator should have discovered and remedied it. Ottinger v. Shaw s Supermarkets, Inc., 635 A.2d 948, 949 (Me. 1993). The plaintiff has the duty of proving that the defendant had notice of the risk. Currier v. Toys R Us, 680 A.2d 453, 455 (Me. 1996). 3. Negligent Security The law of Maine is that the owner of premises owes a legal duty to his business invitees to protect them from those dangers reasonably to be foreseen. Schultz v. Gould Acad., 332 A.2d 368, 371 (Me. 1975). C. JOINT TORTFEASORS/JOINT AND SEVERAL LIABILITY All defendants are jointly and severally liable for the full amount of plaintiff s damages. ME. REV. STAT. tit. 14, 156 (2014). D. COMPARATIVE/CONTRIBUTORY NEGLIGENCE Plaintiffs are barred from recovery if their negligence is equal to or exceeds that of the defendant(s). ME. REV. STAT. tit. 14, 156 (2014). Otherwise, damages recoverable shall be reduced to the extent the jury finding is just and equitable having regard to the plaintiff s share of responsibility for damages. Id. 6

10 E. PRE-JUDGMENT INTEREST Currently 3.13%. Pre-Judgment interest in Maine is the one-year U.S. Treasury Bill rate plus three percent for the year prior to which pre-judgment interest began to accrue. ME. REV. STAT. tit. 14, 1602-B (2014). Notice of the claim initiates accruement of interest. Id. F. SETTLEMENT PRACTICES The court system in Maine provides procedures under which opposing parties may attempt to settle certain types of civil cases with the help of a mediator. In most civil cases, mediation is required. Mediation is generally an informal procedure where the parties and their lawyers work with a neutral party (i.e., a mediator) toward an agreement. A mediator is selected from a pool of trained individuals who have been placed on a mediator roster by the Court Alternative Dispute Resolution Service. If a mutually satisfactory agreement can be reached, it is signed and submitted to the judge for approval. If the parties cannot come to terms, their case is scheduled for trial. If an individual seeks recovery for injury or property damage caused by more than one person, the settlement with or release of one or more of the people who caused the injury is not a bar to a subsequent action against the other person(s) who also caused the injury. ME. REV. STAT. tit. 14, 163 (2014). If such a settlement or release occurs, a trial judge will reduce any verdict for the plaintiff by an amount equal to the settlement of the other person(s). Id. With regard to a settlement in which the plaintiff has entered into an agreement that precludes the plaintiff from collecting against remaining parties that portion of any damages attributable to the settling defendant s share of responsibility, the judge shall reduce the plaintiff s judgment by either the amount determined at trial to be attributable to the settling defendant s share of responsibility, if any was found, or, it no 7

11 such finding is made, by the value of the consideration given to the plaintiff for the settlement. Id Behman Hambelton LLP. 8

12 MASSACHUSETTS PREMISES LIABILITY LAW SYNOPSIS A. STATUTE OF LIMITATIONS (NEGLIGENCE) Three years. MASS. GEN. LAWS ch. 260, 2A (2014). B. PREMISES LIABILITY 1. Slip and Fall A premises owner or operator is obligated to maintain its establishment in a reasonably safe condition under the circumstances. Mounsey v. Ellard, 363 Mass. 693, (1973). The defendant is not required to supply a place of maximum safety under all circumstances. Toubiana v. Priestly, 402 Mass. 84, 88 (1988). To recover, the plaintiff must show by direct or circumstantial evidence that, in the case of a foreign substance, the substance had been at the location of the incident for so long that in the exercise of reasonable care, the defendant s employees should have discovered and removed it. Uchman v. Polish Nat. Home, Inc., 330 Mass. 563, 565 (1953). Under, the leading case of Oliveri v. Massachusetts Bay Transp. Auth., if the evidence in the form of a physical description of the object, does not permit a reasonable inference as to how long it had been at its location, the plaintiff s case is fatally flawed. 363 Mass. 165, 166 (1973). Moreover, the defendant is permitted a reasonable opportunity to discover any such object or foreign substance and to remove it before liability may attach. Id. Of significance, however, is that a different rule applies in the context of self-service areas made available to patrons by store owners. Under such circumstances, those operating the premises are considered to be constructively on notice that items presented for selfservice will find their way to the floor through the carelessness of patrons and, therefore, 9

13 create slipping hazards. Reasonable precautions must be taken, such as placing a mat on the floor, to reduce the risk of such harm to patrons in a self-service environment. Francis Sheehan v. Roche Bros. Supermarkets, Inc. et al., 448 Mass. 780, 792 (2007). 2. Snow and Ice In a recent major change to Massachusetts law pertaining to liability for injuries sustained due to hazards created by snow and ice, a Massachusetts landowner now owes the same obligation of reasonable care that a property owner owes to lawful visitors regarding all other hazards the same reasonable care standard enunciated in Mounsey and described above. In 2010, the Massachusetts Supreme Judicial Court abandoned the natural/unnatural accumulation standard in snow and ice cases. Papadopoulos v. Target Corp. 2, 457 Mass. 368, 369 (2010). Massachusetts now follows the so-called Connecticut Rule in snow and ice cases (i.e., all accumulations of snow and ice are treated as any other property defect). Liability in such cases now turns on the typical elements of notice, reasonable opportunity to discover and remedy, and the reasonableness of the steps taken to remedy the condition. 3. Negligent Security In Massachusetts, courts focus on whether the harm caused was foreseeable in reviewing a negligent security claim. McKinney-Vareschi v. Paley, 42 Mass. App. Ct. 953, 955 (1997). Specific factors supporting liability for failure to protect a lawful visitor from foreseeable injury inflicted by a third party include: a history of prior criminal episodes [at or around the premises]... the unruly behavior or drunkenness of one or more persons on or just off the premises... a display of weapons... failure to provide adequate lighting in secluded areas of the premises... or a failure to provide security, such as guards, locks, alarms, or surveillance, in places where such precautions are the norm. Westerback v. Harold F. LeClair Co., 50 Mass. App. Ct. 144, (2000). 10

14 C. COMPARATIVE/CONTRIBUTORY NEGLIGENCE A plaintiff is barred from recovery if his or her own negligence exceeds that of defendant(s). MASS. GEN. LAWS ch. 231, 85 (2014). Otherwise, plaintiff s recovery is diminished in accordance with his or her degree of fault. Id. D. JOINT TORTFEASORS/JOINT AND SEVERAL LIABILITY Massachusetts follows the so-called one-percent rule. Each joint tortfeasor is liable for a pro rata share of the plaintiff s damages. MASS. GEN. LAWS ch. 231B, 2 (2014). For example, if the plaintiff is not comparatively at fault, two joint tortfeasors would each be liable for fifty percent of plaintiff s damages; three would each be liable for thirty-three percent, etc. However, the plaintiff can choose to collect the entire judgment from any one joint tortfeasor or from more than one joint tortfeasor. MASS. GEN. LAWS ch. 231B, 1(b) (2014). In that case, a joint tortfeasor who has paid more than its pro rata share of the plaintiff s damages has a right in contribution against any other joint tortfeasor who has not paid its pro rata share. Id. E. PRE-JUDGMENT INTEREST Twelve percent per annum from the date the complaint is filed. MASS. GEN. LAWS ch. 231, 6B (2014). F. SETTLEMENT PRACTICES Massachusetts General Laws Chapters 93A and 176D (commonly referred to simply as 93A and 176D ) are the consumer protection laws that regulate the personal injury claims and settlement practices of insurance companies in Massachusetts. Chapter 176D defines the insurance practices that are statutorily unfair while ch. 93A provides the 11

15 mechanism for filing claims for violations of ch. 176D and sets forth the awardable damages arising from such unfair practices Behman Hambelton LLP. 12

16 NEW HAMPSHIRE PREMISES LIABILITY LAW SYNOPSIS A. STATUTE OF LIMITATIONS (NEGLIGENCE) Three years. N.H. REV. STAT. ANN. 508:4 (2014). B. PREMISES LIABILITY 1. Slip and Fall New Hampshire owners and occupiers of land [are] governed by the test of reasonable care under all of the circumstances in the maintenance and operation of their property. Oulette v. Blanchard, 116 N.H. 552, 557 (1976). If the Defendant could not reasonably foresee any injury as a result of his act, or if his conduct was reasonable in light of what he could anticipate, there is no negligence, and no liability. Id. (citing William L. Prosser, TORTS, 43 (4th ed. 1971)). Generally, persons will not be found negligent if they cannot reasonably foresee that their conduct would result in an injury to another or if their conduct was reasonable in light of the anticipated risks. Kellner v. Lowney, 145 N.H. 195, 198 (2000). 2. Snow and Ice Landowners have a duty to use reasonable care to ensure that property under their control is reasonably safe. Dubreuil v. Dubreuil, et al., 107 N.H. 519, 522 (1967). They can be found liable for injuries resulting from a breach of said duty. Id. Pursuant to this duty, landowners must remove natural accumulations of snow and ice, or take other reasonable precautions to make the premises reasonably safe. Id. 13

17 3. Negligent Security A duty exists on the part of a landowner when it is foreseeable that an injury might occur as a result of the landowner s actions or inactions. Generally persons will not be found negligent if they could not reasonably foresee that their conduct [or the conduct of others] would result in an injury to another or if their conduct was reasonable in light of the anticipated risks. Thus, duty and foreseeability are inextricably bound together. Manchenton v. Auto Leasing Corp., 135 N.H. 298, 304 (1992). Limited exceptions to the rule arise where a land owner creates or is responsible for a physical defect on the premises that foreseeably enhances the risk of criminal attack or undertakes to provide security and does so in a negligent manner. Ward v. Inishmaan Assocs., 156 N.H. 22 (2007). C. JOINT TORTFEASORS/JOINT AND SEVERAL LIABILITY Judgment shall be entered against each party liable on the basis of the rules of joint and several liability... except that if any party shall be less than 50% at fault, then that party s liability shall be several and not joint and he shall be liable only for the damages attributable to him. N.H. REV. STAT. ANN. 507:7-e I(b) (2014). However, in all cases where parties are found to have knowingly pursued or taken active part in a common plan or design resulting in the harm, [judgment shall be granted] against all such parties on the basis of the rules of joint and several liability. N.H. REV. STAT. ANN. 507:7-e I(e) (2014). D. COMPARATIVE/CONTRIBUTORY NEGLIGENCE Contributory fault shall not bar recovery in an action by any plaintiff or plaintiff s legal representative, to recover damages in tort for death, personal injury or property damage, if such fault was not greater than the fault of the defendant, or the defendants in the aggregate 14

18 if recovery is allowed against more than one defendant, but the damages recovered shall be diminished in proportion to the amount of fault attributed to the plaintiff by general verdict. E. PRE-JUDGMENT INTEREST The rate of interest, which begins accruing from the date the complaint is filed, is determined by the state treasurer on December 1 of each year as the prevailing discount rate of interest on twenty-six-week U.S. Treasury Bills at the last auction thereof preceding the last day of September in each year, plus two percent. N.H. REV. STAT. ANN. 336:1 (2014). F. SETTLEMENT PRACTICES Failing to acknowledge with reasonable promptness pertinent communications with respect to claims and failing to adopt and implement reasonable standards for the prompt investigation and settlement of claims constitute unfair claim settlement practices. N.H. REV. STAT. ANN. 417:4 (2014). Unless otherwise provided by law, every insurer shall pay any amount finally agreed upon in settlement of all or part of a claim not later than five working days from the date of the agreement or the performance of all conditions which are set forth in the agreement by the insured, claimant, or authorized representative of either of all conditions set forth in such agreement. N.H. CODE ADMIN. R. ANN. Rules of the Insurance Commissioner (h) (2014). New Hampshire also recognizes a right to pursue a claim for negligent failure to settle against an insurer by its insured and upon assignment to the injured plaintiff. Dumas v. State Farm Mut. Auto. Ins. Co., 111 N.H. 43 (1971) Behman Hambelton LLP. 15

19 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). 16

20 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). 17

21 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 18

22 reasonable costs, including attorney s fees, incurred after rejection of the award by those parties not demanding a trial de novo Behman Hambelton LLP. 19

23 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). 20

24 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. 21

25 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. 22

26 RHODE ISLAND PREMISES LIABILITY LAW SYNOPSIS A. STATUTE OF LIMITATIONS (NEGLIGENCE) Three years. R.I. GEN. LAWS (b) (2014). B. PREMISES LIABILITY 1. Slip and Fall The common law distinctions between an invitee, licensee, and trespasser, have been abolished insofar as the degree of care owed by a landowner. In lieu thereof, it must be determined whether a landowner has used reasonable care for the safety of all persons reasonably expected to be upon the premises. Mariorenzi v. DiPonte, 114 R.I. 294, 307 (1975). Landowners owe trespassers, who are not expected to be on the premises, no duty except to refrain from wilful or wanton conduct. Tantimonico v. Allendale Mut. Ins. Co., 637 A.2d 1056, 1057 (R.I. 1994); but cf. King v. Narragansett Elec. Co., 1995 WL (R.I. Super. 1995). An injured party must prove that a defective condition existed for a period sufficient to give the premises owner or occupier reasonable notice (actual or constructive) and that despite such notice, the owner or occupier failed to remove the condition or warn of its existence. Pandozzi v. Providence Lodge No. 14, 496 A.2d 928, 930 (R.I. 1985); Lombardi v. Dryden Corp., 114 R.I. 202, 203 (1975). Notice of a defect or dangerous condition on the premises imposes a duty on a defendant-owner to remedy the condition or to warn the plaintiff-customer of the danger. Fisher v. Almac s, Inc., 117 R.I. 244, 245 (1976). 23

27 2. Snow and Ice The so-called Connecticut Rule, which permits a landlord to wait a reasonable time after the end of a storm to clear snow and ice before liability attaches, has been adopted in Rhode Island. Terry v. Cent. Auto Radiators, Inc., 732 A. 2d 713, (R.I. 1999). that there is: 3. Negligent Security In Gillogly v. New England Transp. Co., the Supreme Court of Rhode Island stressed no liability when injury is inflicted as the result of natural causes or of the negligence of a third party which directly and exclusively create a situation not preventable by any reasonable foresight. In such a situation the accident resulting in injury is unavoidable. But the rule is otherwise where the [defendant] contributes in creating a condition that could have been avoided by the exercise of due care. 73 R.I. 456, 465 (1948). A person who owes a legal duty to another is bound to foresee that which is probable, that is, what according to the usual experience of mankind is likely to happen. Id. As a general rule, a landowner has no duty to protect another from the harm caused by the dangerous or illegal acts of a third party. Martin v Marciano, 871 A.2d 911, 915 (R.I. 2005). Such acts generally sever the chain of foreseeability. C. JOINT TORTFEASORS/JOINT AND SEVERAL LIABILITY A successful plaintiff may seek to recover his damages from any defendant found liable. If that defendant pays more than his proportionate share as determined by the jury s percentage of fault, then that defendant would have a right of contribution from the other joint tortfeasors to recover the amount of damages in excess of his proportionate share that he has paid to the plaintiff. R.I. GEN. LAWS (2014). 24

28 D. COMPARATIVE/CONTRIBUTORY NEGLIGENCE Rhode Island is a pure comparative state. R.I. GEN. LAWS (2014). A plaintiff can recover as long as he is not 100% at fault. Id. A plaintiff s recovery of damages is reduced in accordance with his degree of fault. Id. Under Rhode Island law, where a person voluntarily and knowingly accepts a dangerous situation, he absolves a defendant s liability for having created an unreasonable risk of harm. Filosa v. Courtois Sand & Gravel Co., 590 A.2d 100, 103 (R.I. 1991) (citing Kennedy v. Providence Hockey Club, Inc., 119 R.I. 70, 76 (1977)). Assumption of the risk may be raised by a defendant as an affirmative defense to a negligence claim. Consequently, assumption of the risk, if it applies, terminates the duty of care that the defendant owes to the plaintiff. Filosa, 590 A.2d at 103. E. PRE-JUDGMENT INTEREST Twelve percent per annum from the date of injury. R.I. GEN. LAWS (2014). F. SETTLEMENT PRACTICES Whenever a claim is settled, the insurance company responsible for paying the settlement must make payment within thirty days from the date the claimant or his attorney sends the release. R.I. GEN. LAWS (2014). Failure to make payment within thirty days raises a presumption that the failure was a wilful and wanton disregard of the rights of the claimant. Id. Additionally, the payor is liable to the claimant in a separate cause of action for punitive damages and interest computed at twelve percent per annum from the date of the cause of action giving rise to the settlement until judgment on the claim is entered. Id Behman Hambelton LLP. 25

29 VERMONT PREMISES LIABILITY LAW SYNOPSIS A. STATUTE OF LIMITATIONS (NEGLIGENCE) Three years. VT. STAT. ANN. tit. 2, 512(4) (2014). B. PREMISES LIABILITY 1. Slip and Fall A duty is owed to a business visitor or other invitee to keep premises reasonably safe. Mortiboys v. St. Michael s Coll., 478 F.2d 196, 197 (1973). A landowner generally has no duty of care to protect trespassers from injury caused by unsafe and dangerous conditions on the premises. Buzzell v. Jones, 151 Vt. 4, 6 (1989). 2. Snow and Ice A defendant owes a plaintiff a duty to use reasonable care to keep its premises in safe and suitable condition in light of the fact that winter weather is a reality of life and that slippery conditions cannot be wholly prevented but are foreseeable. Wakefield v. Tygate Motel Corp., 161 Vt. 395, 398 (1994). 3. Negligent Security Vermont common law does not hold property owners or operators liable in negligence for consequences that a reasonably prudent person could not have foreseen or anticipated under the circumstances. Edson v. Barre Supervisory Union, 182 Vt. 157, 161 (2007). In general, crimes committed by a third party fall within the realm of the unforeseeable, and therefore cannot form the basis for liability. Id. at 162 (citing Estate of Sumner v. Dep t of Soc. & Rehab. Servs., 162 Vt. 628, 629 (1994) (mem.)); Smith v. Day, 26

30 148 Vt. 595, 598 (1987) (finding university was not liable for student s unforeseeable criminal acts). C. JOINT TORTFEASORS/JOINT AND SEVERAL LIABILITY Vermont is a pure several liability state, meaning each defendant is only liable for his assigned portion of the damages based on his percentage of fault. VT. STAT. ANN. tit. 2, 512(4) (2014). No right of contribution among joint tortfeasors exists in Vermont. Murray v. J & B Int l Trucks, 146 Vt. 458, 468 (1986). A right of indemnity exists only by an express agreement or undertaking by one joint tortfeasor to indemnify the other, or if the law implies such an undertaking given the circumstances. Id. at 467. D. COMPARATIVE/CONTRIBUTORY NEGLIGENCE A plaintiff may recover so long as his negligence is less than or equal to the combined negligence of all the defendants. VT. STAT. ANN. tit. 12, 1036 (2014). However, a plaintiff s damages are diminished by general verdict in proportion to the amount of negligence attributable to him. Id. E. PRE-JUDGMENT INTEREST Pre-judgment interest in Vermont is twelve percent per annum from the date of injury. VT. STAT. ANN. tit. 9, 41a(a). It may be awarded as a matter of right where damages are liquidated or reasonably ascertainable as of the date of the tort. Turcotte v. Estate of La Rose, 153 Vt. 196, 199 (1989) (excluding punitive damages). F. SETTLEMENT PRACTICES All payments of claims under policies of insurance are made, unless another statute specifically provides otherwise, within thirty days of settlement between the insurer and beneficiary. VT. STAT. ANN. tit. 8, 3665(c) (2014). In the event judgment is entered for a 27

31 beneficiary, or a settlement agreement between the insurer and the beneficiary is executed, interest accrues from thirty days after the beneficiary files a properly executed proof of loss. VT. STAT. ANN. tit. 8, 3665(d) (2014). The interest rate imposed on the insurer is the judgment rate allowed by law. Id Behman Hambelton LLP. 28