Another Day, Another Lawsuit About Injuries Suffered At A Gym (Another Reason For Me Not To Go To The Gym)

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

Weight lifters (pd)
I have written about the enforceability of waivers in health club membership agreements before, including just last week. Now the Appellate Decision has issued another decision on this same topic, Crossing-Lyons v. Town Sports International, Inc., which nicely illustrates the types of injuries that are covered by these agreements and those that are not.

First, a little background. The two seminal cases on this issue are Stelluti v. Casapenn and Walters v. YMCA , both of which I have written about before.

In Stelluti, plaintiff was injured when the handlebars of her stationary bike dislodged and caused her to fall during a spin class. The New Jersey Supreme Court held that these injuries were covered under the broad release in plaintiff's membership agreement. It reasoned that exercising entails vigorous physical exertion (depending, of course, on the person exercising – I am not sure my time on the stationary bike this morning was terribly vigorous), and that the member assumes some risks — faulty equipment, improper use of equipment, inadequate instruction, inexperience, poor physical condition of the user, or excessive exertion — as a result. While a health club must maintain its premises in a condition safe from known or discoverable defects, it need not ensure the safety of members who voluntarily assume some risk by engaging in strenuous physical activities that have a potential to result in injuries.  

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Exception To The Rule: Ambulance Service Providers Are “Learned Professionals” And Not Subject To New Jersey’s Consumer Fraud Act

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

Ambulance (pd)New Jersey's Consumer Fraud Act ("CFA") is generally recognized as one of the strongest consumer protection laws in the country. It prohibits "any unconscionable commercial practice, deception, fraud, false pretense, false promise or misrepresentation" that leads to an "ascertainable loss." But, certain "learned professionals" — doctors, lawyers, hospitals, etc. — are insulated from liability under the CFA. In Atlantic Ambulance Corporation v. Cullum, the Appellate Division added ambulance service providers to the list of "learned professionals" who are not subject to the CFA. 

In Atlantic Ambulance, defendants received services from plaintiff, an ambulance service provider. After they failed to pay the bills for those services, plaintiff sued. In response, defendants filed a counterclaim alleging that they were overbilled by plaintiff in violation of the CFA. Defendants sought to bring their counterclaim as a class action on behalf of themselves and all other similarly situated people who were allegedly overcharged during a six-year period.

After five years of discovery, defendants moved for class certification. The trial court denied the motion for a number of reasons, only one of which is relevant for this post. Plaintiff argued that defendants could not maintain a cause of action under the CFA because they did not pay their bills, therefore they had not suffered any "ascertainable loss." The trial court agreed, expressly rejecting defendants' argument that an excessive bill from plaintiff, by itself, was enough to prove an ascertainable loss. Defendants appealed. 

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When Is Possession Not Really Possession? (And By “Possession” I Mean In The “Mortgagee In Possession” Sense Of The Word)

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

Lenders are often faced with a dilemma when dealing with property that is in foreclosure and has been abandoned by the borrower. A lender must, under New Jersey law, maintain the property "to such standard or specification as may be required by state law or municipal ordinance." Also, the lender has an obvious interest in protecting the value of its collateral. But the lender does not want to take "possession" of the property and be deemed a "mortgagee in possession," because that would impose upon the lender the duty of a "provident owner," which includes the duty to manage and preserve the property, and which subjects the lender to liability for damages to the property and damages arising out of torts that occur on the property. Unfortunately, the point at which a lender takes "possession" of property is not entirely clear. I have written about this before, and the Appellate Division's recent opinion in Woodlands Community Association, Inc. v. Mitchell provides some additional guidance, which should be helpful to lenders.

In Woodlands, defendant was the assignee of a note and mortgage related to a unit in plaintiff's condominium development. The unit owner defaulted on the loan and vacated the unit. At the time, the unit owner was not only delinquent on his loan payments, but also owed "substantial sums" to the association for "unpaid monthly fees and other condominium assessments." After the unit owner vacated the unit, defendant changed the locks and winterized the property. (As the Appellate Division noted, "[w]interizing entails draining the  pipes, turning off the water and setting the thermostat for heat to protect the pipes.") After the unite owner vacated the unit, plaintiff sued him to recover the delinquent fees. It later amended its complaint to include the lender, "alleging that [[the lender] was responsible for the association fees as it was in possession of the property."

Both parties moved for summary judgment. The trial court granted plaintiff's motion, holding that defendant was a mortgagee in possession and therefore was liable for the maintenance fees. On the key of issue of what it meant to be in "possession" of the unit, the trial court held as follows: "[D]efendant held the keys, and no one else [could] gain possession of the property without [defendant's] consent. This constitutes exclusive control, which indicates the status of mortgagee in possession." Defendant appealed. 

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Neighbor’s Tree Limbs Hanging Over Your Yard? Just Rent A Chainsaw, Climb A Ladder, And Cut Them. What Could Go Wrong?

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

Chainsaw (pd)Turns out, a lot could go wrong. But, if it does, the neighbor whose tree limbs inspired you to climb the ladder, chainsaw in hand, probably won't be responsible, at least according to the holding in Corbisiero v. Schlatter.

In Corbisiero, plaintiff was a tenant in mixed-use property that was adjacent to defendant's property. In Spring 2013, some twigs and branches fell from tress located on defendant's property onto the property where plaintiff lived. Plaintiff asked defendant to cut down some of the branches that extended onto the property, which defendant did. A few months later, plaintiff asked defendant to cut down some more branches. Defendant told plaintiff that she would do it when she had time.

Apparently unwilling to wait for defendant to get to it, plaintiff spoke to her landlord about cutting the branches herself. Her landlord told her that "if [the tree limbs] grew over his property . . . we [can] cut them down." The landlord also told plaintiff that he would reimburse her for the cost of a chainsaw to be used to cut down the limbs. It is unclear if the landlord was suggesting that plaintiff both buy the chainsaw and cut the limbs down (as opposed to buying the chainsaw and having someone else do it), but plaintiff nonetheless chose to take matters into her own hands and do both. 

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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)

Parking lot lights (pd)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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