Booze And Boating Don’t Mix (But They Do Lead To An Interesting Discussion Of Negligent Entrustment)

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

Some sets of facts just seem tailor-made for a potential lawsuit. Climbing up a ladder with a chainsaw to cut your neighbor’s tree limbs that are hanging over your lawn comes to mind. Also on that list, a day out on a boat with your friends from the local bar, more than a few beers, and a jet-ski. Those were the basic facts in Votor-Jones v. Kelly. In that case, what started out as a fun day out at sea for a group of friends became a very bad day for plaintiff and an opportunity for the court to opine on the rarely-invoked tort of negligent entrustment.

In Kelly, plaintiff was “one of seven employees and patrons of Kelly’s Tavern invited on a social trip organized by the tavern’s owner and plaintiff’s boyfriend.” While plaintiff described the event as a “bar outing,” it was not the more formal, “large scale ” “customer appreciation days” that the bar had organized in the past. Instead, it was “small and planned the night prior at the suggestion of the boat’s operator.” Each attendee was required to bring their own food and alcohol. To that end, plaintiff and her boyfriend testified that, on the morning of the cruise, they went to the bar and fulled their cooler with approximately 24 beers and a bottle of wine. The group had a total of four or five coolers like this on the boat.

The attendees had a “tacit agreement” that they would not drink until 4pm, but some apparently ignored this agreement. One defendant acknowledged that she was drinking prior to boarding the boat and plaintiff testified that she saw this woman have “at least three beers on the dock” before the cruise began. Once the cruise started, this same woman was seen with a beer in her hand and was described by plaintiff as being “loud,” “boisterous,” and “excited.” Plaintiff conceded that she did not know if the woman was drunk, but did see her “wobbling on the boat, as was everyone else.”

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New Jersey Court Answers The Burning Question: Can I Sue The Owner Of An Abandoned Church If I Slip And Fall On The Sidewalk Outside The Church?

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

The facts and legal issues in sidewalk slip and fall cases sometimes read like they are pulled from law school final exams. In New Jersey, the baseline legal rule is clear — owners of commercial properties generally have a duty to maintain, in reasonably good condition, the sidewalks abutting their property, while owners of residential properties do not. But does a property owner have a duty to maintain its sidewalks when:

the property is both residential and commercial, like a multi-family home where one unit is owner occupied and the others are rented (click here for more on that, but the short answer is that it depends on whether the property is primarily residential or primarily commercial ); or
the plaintiff is a tenant and sues the landlord after slipping on a sidewalk outside the rental property (click here for more on that, but usually, yes); or
the property is a commercial property, final judgment of foreclosure has been entered in favor of the lender, but no sheriff's sale has been scheduled (click here for more on that, but if the lender can be considered a mortgagee in possession, then yes); or
the property is owned by a condominium or common-interest community (click here for more, but generally, yes if it's a private sidewalk within the condominium, no if it's a public sidewalk abutting the condominium); or
the property is residential and the fall is caused by sweetgum spikey seed pods that fell from a tree on the defendant's property (click here, but, no).

And now one more can be added to the list thanks to the Appellate Division's decision is Ellis v. Hilton United Methodist Church, where the question presented was whether "sidewalk liability applies to an owner of a vacant church."

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Take It Outside: Club Not Responsible For Injuries When Fight Spilled Into Parking Lot

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

You don't need to be James Dalton to know that bar fights are scary. (If you don't know who James Dalton is, however, you do need to go watch Road House.) Bar fights can also create legal problems for bar owners. For example, do bar owners have a duty to keep their patrons safe from harm caused by fights? In Lloyd v. Underpass Enterprises, Inc. t/a The Harem, the Appellate Division dealt with this issue in the context of a somewhat unusual situation — a fight between two people that started in the club but ended up outside the club, and injured an individual who was not one of the combatants.

In Lloyd, plaintiff was playing "poker tournament style" in a hotel room with some co-workers, including Cecil George. After the game, they decided to visit a gentleman's club. George invited a friend, who had not been at the poker game, to join them at the club. About an hour after arriving, plaintiff saw George fighting with someone who "may have been" the friend George invited to the club. The club's bouncers broke up the fight, "escorted George and the other combatant outside to the parking lot," and then waited near the club's entrance. Plaintiff followed them out. The Appellate Division described what happened next:

[Plaintiff] was standing near George when he saw the other combatant rushing quickly, looking "menacing and coming at [them] with intent." [Plaintiff] stepped in between George and the person rushing at them to "put [him]self as a barrier between [the other combatant] and [George]." [Plaintiff] stated "[e]verything happened quickly." He awoke four days later in the hospital, having sustained a serious head injury.

Plaintiff sued the club. The club moved for summary judgment, and the trial court granted its motion. Plaintiff appealed, but the Appellate Division affirmed the trial court's decision.

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Shortcut Across Bank Parking Lot Leads To A Slip And Fall, But No Liability For The Bank

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

I tagged this post in the "banking" category even though its only connection to banking is that it involves a slip-and-fall that occurred in a bank parking lot. But, it offers yet another example of something I have written about before — liability of property owners for accidents that occur on their property.

In Negron v. Warriner's Construction Co., plaintiff slipped on ice and snow in a PNC Bank parking lot that he was using as a short cut to get from his home to a nearby Dollar Store. A morning snow storm dropped approximately 5-6 inches of snow on the area. After the snow stopped, the parking lot was plowed and salted. Plaintiff, who lives across the street from the bank, actually watched the lot get plowed and salted. Several hours after the lot was plowed, a light snowfall covered the lot again with a dusting of snow and, in certain spots, ice underneath.

At around 9 pm, after the second snowfall, plaintiff left his home for the Dollar Store. "Rather than staying on public sidewalks, plaintiff took his normal route by taking a shortcut across the PNC Bank parking lot." This was apparently not uncommon in the neighborhood; residents regularly cut across the lot. There were no fences or gates preventing them from doing so, but there was a "No Trespassing" sign. There was also a sign restricting parking to only bank customers, but this was frequently ignored by neighborhood residents who parked their cars in the lot.

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Climbing A Light Pole Is Incidental To Fixing The Light At The Top, Therefore Property Owner Not Liable For Independent Contractor’s Injuries

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

On this blog I have occasionally written about the duty owed by landowners to, among others, visitors and trespassers and folks walking along a landowner's sweetgum-spiky-seed-pod-riddled sidewalk. In Pisieczko v. The Children's Hospital of Philadelphia, the Appellate Division addressed a similar situation — the duty owed by a landowner to an independent contractor performing work on its property.

In Pisiaczko, plaintiff was an independent contractor who worked for defendant "doing odd jobs, such as repairing different fixtures, changing lights, and installing tiles." In this capacity, he was hired by defendant to repair lights, which were "affixed to wooden poles" and located in one of defendant's parking lots. Defendant provided no guidance or supervision to plaintiff. Before beginning his work, plaintiff pushed on one of the wooden poles to make sure it was sturdy. When it did not move, he took a ladder, leaned it against the pole, and extended it to approximately two feet below the light fixture. He secured the ladder with straps around the pole. Unfortunately, while plaintiff was on the ladder testing the fixture, the pole broke. Plaintiff jumped off the ladder from about 20 feet to avoid falling into barbed wire. He injured his heel in the process.

Plaintiff sued. He alleged that the pole was rotten inside, which caused it to break. (The parties agreed that the rot was not visible before the pole broke.) Defendant moved for summary judgment, arguing that it was not liable for plaintiff's damages because the decision to place the ladder against the pole was incident to the specific work plaintiff was hired to perform. The trial court agreed and granted the motion. Plaintiff appealed.

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