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

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

Boat and beer (pd)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.”

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

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

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

Roadhouse (pd)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.

Continue reading “Take It Outside: Club Not Responsible For Injuries When Fight Spilled Into Parking Lot”

Let Sleeping Dogs Lie . . . Just Not In A Hallway Where They Might Create A Dangerous Condition?

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

Sleeping dog (pd)When is a sleeping dog a dangerous condition? This is the burning question that the Appellate Division answered in Parella v. Compeau.

In Parella, plaintiff attended Christmas dinner at a friend's house along with approximately 20 other guests. After the second course, she got up from her chair to put her dish in the kitchen sink and check on her child who was in an another room. To do so, she had to walk behind several seated guests. She did not have to ask anyone to move until she got to the last guest in the row. That guest moved her chair in and plaintiff made a move familiar to anyone who has been to a crowded holiday dinner — she "lifted [her] glass and plate, turned her back to the wall and shuffled her feet to pass behind [the] chair." "As she cleared the chair, plaintiff turned right to enter the hall toward the kitchen, and fell." 

What caused her fall was a "tan, fairly large dog" that was "lying in the hallway, past the threshold of the dining room." The dog did not belong to defendants, the owners of the house and the hosts of the party, and was one of two dogs in the house for the party. When plaintiff fell, the wine glass she was holding broke, cutting her finger and severing a tendon. Plaintiff sued, alleging that defendants failed to warn of her of a dangerous condition — the dog — in their home. The trial court granted summary judgment to defendants and plaintiff appealed.

Continue reading “Let Sleeping Dogs Lie . . . Just Not In A Hallway Where They Might Create A Dangerous Condition?”

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. 

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

“Young Man, There’s A Place You Can Go . . .” (But That Place Might Not Be Immune From Liability Under New Jersey’s Charitable Immunity Act If You Later Sue For Injuries You Suffered There)

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

YMCA (pd)These are not alternate lyrics to the the classic Village People song, YMCA, but they could be if the song were written by the Appellate Division panel that recently decided Lequerica v. Metropolitan YMCA of the Oranges.

In Lequerica, plaintiff was injured during a group strength and conditioning class at the YMCA. At one point, the instructor had the the class run toward a wall, touch it, and then return to the wall where they started. According to the Appellate Division:

On her return, plaintiff realized she was going too fast, and when she tried to stop she fell forward and hit her head "extremely hard" on the concrete wall in front of her. While running toward the wall, plaintiff was competing with a friend to see who could reach it first. Before she fell, plaintiff put her arm out in front of her friend in an effort to beat her to the wall. Plaintiff testified she was running so fast she felt she would not be able to stop at the wall, that she "tried to stop herself," and that ultimately, she "tripped."

Plaintiff suffered "a concussion, a large scalp laceration, and a left wrist fracture." She sued the YMCA and the instructor.

Defendants moved for summary judgment, arguing that (1) they were immune from liability under the Charitable Immunity Act, and (2) plaintiff could not establish a prima facie case of negligence. Plaintiff opposed the motion, arguing that the YMCA was not covered by the Charitable Immunity Act and that summary judgment was premature because discovery was not yet complete.

Continue reading ““Young Man, There’s A Place You Can Go . . .” (But That Place Might Not Be Immune From Liability Under New Jersey’s Charitable Immunity Act If You Later Sue For Injuries You Suffered There)”

Does a judge have to explain the “empty chair” to the jury when there was never anyone sitting there in the first place?

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

Empty chairA recent trial court decision, Hernandez v. Chekenian, dealt with a minor, but significant, twist on a common scenario involving the so-called empty chair defense. This defense does not literally involve an empty chair. Rather it refers to the situation when defense counsel argues to a jury that someone else, someone not sitting at the defense table, is to blame for plaintiff's injuries. That party is usually, but not always, missing because they settled with the plaintiff.

The New Jersey model jury charges contain two settling co-defendant instructions. One is very short, and simply notifies the jury that a defendant settled and that "[t]he effect of that settlement on the parties still [t]here is of no concern to you at the present time and you should not speculate about that." The second is more detailed. It similarly notes that the jury should not "speculate as to the reasons why the plaintiff and defendant settled their dispute" and "should not be concerned about the amount, if any, that may have been paid to resolve the claim," but then instructs the jury to consider "whether or not the settling defendant was negligent and a proximate cause of the accident," and, if it does, to then "apportion fault in terms of percentages among/between the settling defendant(s) and the remaining defendant(s)." 

Hernandez involved a three-car, chain reaction crash. Plaintiff was the passenger in the middle car. He sued the driver and owner of the first car, the driver and owner of the middle car (in which plaintiff was a passenger), and the driver of the third car. Prior to trial, plaintiff dismissed the claims against the driver and owner of the first car and the claims against the owner of the second car. He then settled the claims against the driver of the middle car. That left only the claims against the driver of the third car for trial. Counsel for the one remaining defendant requested that the court give the jury a settling co-defendant charge.  

Continue reading “Does a judge have to explain the “empty chair” to the jury when there was never anyone sitting there in the first place?”

Good News: That Tenant You May Not Have Known You Had Is Not A Cloud On Title

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

AuctionIf you have ever been to a sheriff's sale in New Jersey then you are familiar with the litany of announcements that precede each sale — "This sale is made subject to easements of record," "The property is being sold on an 'as is' basis," etc. Sellers make these announcements because, under New Jersey law, they are required to disclose "any substantial defect in or cloud upon the title of the real estate sold, which would render such title unmarketable." If a seller intentionally or negligently fails to disclose any substantial defects or clouds on title, then a court may vacate the winning bid and return the winning bidder's deposit. For example, if a seller fails to reveal the amount of unpaid taxes on a property before a sheriff's sale, the sale can be vacated if the winning bidder discovers the amount and is unwilling to pay it.

Usually included in these announcements is something making clear that the property is being sold subject to the rights of tenants and occupants, if any. But what happens when, after the sale, the winning bidder visits the property and discovers a tenant, or at least someone claiming to be a tenant, occupying the property? Does that entitle the winning bidder to vacate the sale and get its deposit back?

This is exactly what happened in PHH Mortgage Corporation v. Alleyne. In that case, the winning bidder at a sheriff's sale moved to set aside its successful bid and compel a refund of the amount it tendered to the sheriff at the sale (winning bidders are generally required to put 20% of the bid price down at the sale and pay the balance within 30 days). The winning bidder argued that, after the sheriff's sale, it sent a representative to the property and he discovered an individual who "refused to give his name but asserted rights to possession of the property as a tenant." The winning bidder argued that (1) this tenancy was a cloud on title, therefore it should have been disclosed at the sale, and (2) the seller has an independent duty to inspect for tenants on the property before the sale. The trial court rejected these arguments and the Appellate Division affirmed.

Continue reading “Good News: That Tenant You May Not Have Known You Had Is Not A Cloud On Title”