No Expert Needed When Party’s Attempt To Fix Clogged Tub “Bespeaks Negligence”

Plumbing (pd)by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Although I have been a homeowner for a number of years and like to think that I am reasonably handy, my knowledge of plumbing  is probably more informed by Mario Brothers than anything else. As the saying goes, I know just enough about the subject to be dangerous, so I generally try to avoid it. One of the parties in a recent Appellate Division decision, Sayat Nova, LLC v. Koestner, probably would have been better served heading this advice, as the Appellate Division held that no expert was needed to show that it acted negligently when it broke a pipe in a clogged tub that caused flooding in a restaurant several floors down.

In Sayat Nova, plaintiff operated a restaurant in defendant's building. After water from a third-floor apartment came flooding like a "waterfall" out of the ceiling and into the restaurant, plaintiff sued. The incident that precipitated the lawsuit was not the first time that the restaurant flooded. Four times in the previous three years, water entered the restaurant from the same general area in the ceiling. Each incident "involved more water and more damage than the previous incident." Each time plaintiff notified defendant, but never received a response. On one prior occasion, after receiving no response from defendant, plaintiff hired contractors at his own expense to repair the damage. Plaintiff was never compensated for these expenses or any losses caused by the prior incidents. 

In the incident that led to the complaint, water came into plaintiff's restaurant from the ceiling above a different area of the restaurant than in prior incidents. Moments after plaintiff noticed the intrusion, the building's superintendent entered the restaurant with a man plaintiff did not know. Neither man was a licensed plumber. The superintendent told plaintiff: "By mistake we broke the pipe . . . We try to fix the fixture, and the guy by mistake break the pipe." He was apparently referring to a pipe in a third-floor apartment with a "hair-clogged tub." After the incident, defendant called a licensed plumber to fix the problem, but the damage caused plaintiff to have to close his restaurant several days for repairs.

Continue reading “No Expert Needed When Party’s Attempt To Fix Clogged Tub “Bespeaks Negligence””

Dismissal With Prejudice Too Harsh A Remedy For Expert’s Unavailability

 by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Gavel (pd)There is often tension between a court's need to effectively manage its docket and the overriding objective that a lawsuit be resolved on its merits and not because a party (or its counsel) misses a deadline. Courts establish deadlines. If they are ignored, can the court — as a sanction, and in the interest of managing its docket — dismiss the lawsuit with prejudice? According to the Appellate Division in a recent unpublished decision, Trezza v. Lambert-Wooley, the answer to this question is "no," unless the noncompliance was purposeful and no lesser remedy was available to the court. 

In Trezza,plaintiffs sued defendants for medical malpractice. Three years after the lawsuit was filed, the court set a peremptory trial date. This was rescheduled when the court did not reach the case on the trial date. The trial did not take place on the rescheduled date or a subsequent rescheduled date, both times because defendant's designated trial counsel was unavailable. Thereafter, the Presiding Judge issued a sua sponte order scheduling trial for approximately four months later and setting forth "specific and stringent terms as to the course and conduct of the case relative to trial." The order mandated that: (1) the trial date would not be adjourned to accommodate the parties' or counsels' personal or professional schedules; (2) counsel was required  to monitor the schedules of their parties, witnesses, and experts, and if one or more were not going to be available on the trial date, arrange for a de bene esse deposition ahead of trial; and (3) if designated trial counsel was not available on the trial date, alternate counsel would have to be found, whether or not from the same firm.

Five days before the scheduled trial date, plaintiff's counsel requested that the trial be carried for four days due to the unavailability of plaintiff's liability expert, which he only learned about a few days prior to the request. Defendants' counsel consented to the request. The judge assigned to the case considered the request but, in light of the Presiding Judge's order, determined that he did not have the authority to grant the adjournment. He sent the parties to the Presiding Judge, who denied the request and directed the parties to proceed to trial. "Predicated upon the terms of the order, the age of the case, and plaintiff's expert's unavailability, the judge [then] dismissed the complaint with prejudice." Plaintiffs appealed.

Continue reading “Dismissal With Prejudice Too Harsh A Remedy For Expert’s Unavailability”

We got next! Injured during a pick-up game, no expert needed; injured during a league game, get an expert.

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Soccer (pd)Continuing with a recent theme of people getting injured playing sports and then suing the people who allegedly injured them, we now have Greaves v. Inline Skating Club of America, LLC. In Greaves, plaintiff was the goalie on a soccer team. He was injured during a formal, league-sponsored game with referees (this will be important later on). The Appellate Division described the underlying events as follows:

[Plaintiff] was severely injured while playing soccer as goalie for "Kiss the Baby" team. At the time, plaintiff was in the process of picking up the ball inside the goalie  box.  He had the ball for approximate[ly]  [five] to [ten] seconds when he was tackled/kicked and/or pushed to the ground in a violent manner by .  .  .  a player on the  opposing soccer team. Plaintiff struck his head on the hard surface losing brief [sic] consciousness. At the same time and place, the game was being refereed by [the referee] who was working as an agent and/or employee of [defendant].

Plaintiff sued the player who made contact with him, the referee, and the facility that ran the league. Plaintiff never served the player or the referee with the summons and complaint, however, so they were dismissed and the lawsuit proceeded against the facility alone. Plaintiff alleged that the facility was "responsible for maintaining a safe facility and failed to supervise and provide security at the facility." Stated differently, plaintiff alleged that the referee's failure to officiate the game properly caused his injuries.

Plaintiff never produced an expert report during the discovery period. After receiving an adverse decision from an arbitrator during mandatory, pre-trial arbitration, plaintiff moved for trial de novo and served a liability expert report. Defendant objected, forcing plaintiff to move to reopen discovery so that he could amend his discovery responses to identify his expert and serve the expert report. The motion was denied.  Defendant then moved for summary judgment, which was also denied because the trial court held there were issues of fact regarding the role of the referee and whether defendant breached any duty it may have had to plaintiff.

Continue reading “We got next! Injured during a pick-up game, no expert needed; injured during a league game, get an expert.”

We’ve Come A Long Way From Orange Slices At Halftime! Court Rejects Lawsuit Over Injury During Youth Soccer Match

 by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

 

Yellow card (pd)

If you thought that the yellow card that your child got at his or her soccer match (undeserved though I am sure it was) could never land you in court, you were wrong. In G.C. v. New Jersey Youth Soccer, the parents of a child who received a yellow card were sued by the parents of a child who was injured on the play that resulted in the yellow card. Here is how the Appellate Division described the play:

During the last two minutes of a close soccer match, twelve-year old [plaintiff] was dribbling the ball to take a shot at the goal . . . [Defendant] was trying to catch up with him and take the ball away. There was excitement as the game was close and time was running out. [Plaintiff] made a move for the ball, but he didn't have control of himself as he did and managed to catch the plaintiff after the shot went off.

The play resulted in a knee injury to plaintiff and a yellow card being issued to defendant because, according to the referee, he "contacted [plaintiff] in a manner that didn't confirm with normal level of play."

It also resulted in a lawsuit being filed by plaintiff's parents, on his behalf, against a number of parties, including the other child, several individuals, and various soccer clubs and associations. Plaintiff alleged negligence and reckless and intentional conduct on the part of all defendants. After discovery, each defendant moved for, and was granted, summary judgment. Plaintiff only appealed the grant of summary judgment to the other child.

Continue reading “We’ve Come A Long Way From Orange Slices At Halftime! Court Rejects Lawsuit Over Injury During Youth Soccer Match”

As Real Estate Market Continues To Struggle, A Ray Of Sunshine Emerges From, Of All Places, Florida

by:  Peter J. Gallagher

The most recent Case-Shiller index suggests that home prices ticked up in May ("U.S. Housing Prices Rise Slightly, But Remain Weak").  While this might sound like good news, experts were hardly celebrating.  Most attributed the rise in the composite index to "seasonal factors" (i.e., demand is typically strongest in the Spring) and pointed to other negative signs – "contract cancellations, tightened lending standards and sales of new homes in June" — as better examples of the overall health of the market. 

Against this grim news comes surpisingly good news from the usually bad news rich housing market of Florida.  In "Affluent Buyers Reviving Market For Miami Homes," the New York Times notes that sales in Miami, particularly on higher end properties, are up more than 16%, with more than two-thirds of those sales being all cash deals.  While this revival is obviously limited to the wealthy, it is at the very least a small ray of hope in an otherwise downtrodden real estate market.