Law And The Simpsons, Lesson One: Trampolines=Potential Lawsuits

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

I know trampolines are fun, but everyone should know, thanks to The Simpsons, that they are a recipe for (legal) disaster:

Apparently some people missed this episode, as a recent decision from the Appellate Division, Panico v. Winner, demonstrates. [Note: In the second week of my first-year torts class, our professor told us that we were having a pop quiz. Being first-year law students, we all panicked. But then he shut off the lights and played this clip and we discussed all of the potential legal issues. It was a relief that it was not a quiz, but unfortunately this was the high point of my first-year torts class.]

In Panico, plaintiff was injured while jumping on a trampoline at a graduation party. The party was held at one of his classmate's homes and was attended by approximately twenty teenage guests. His classmate's mother originally planned to attend the party and serve as chaperone, but later learned that she would not be able to attend because of a work obligation. She told her daughter that she would have to cancel the party unless her daughter could convince the daughter's grandparents to attend. The daughter was able to do so. Her grandparents attended the party and, as a reward, became defendants in a lawsuit. 

Continue reading “Law And The Simpsons, Lesson One: Trampolines=Potential Lawsuits”

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?”

If You Cancel Your Wedding Reception Can You Get Your Money Back From The Venue? (Or, When Is A Liquidated Damage Clause Enforceable?)

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

Wedding reception (pd)In the past, I have written about engagements gone wrong, including a case involving a failed (alleged) engagement and the return of a (purported) engagement ring that the recipient initially claimed to have lost, but later (apparently) found, and marriages gone wrong, including a case asking whether a marriage can be annulled because of a former wife's equitable fraud, but never a marriage reception gone wrong. With the Appellate Division's recent decision in Corona v. Stryker Golf, LLC, I am finally able to fill this gap in my failed relationship scholarship. On a more routine note, Corona also provides a helpful primer on the enforceability of liquidated damages clauses in contracts.

In Corona, plaintiff entered into a contract with defendant to hold her wedding reception at defendant's catering hall. Defendant agreed to provide the venue, food, and beverages for a contract price of approximately $12,012.80. The contract required an initial, non-refundable deposit of $2,500. Plaintiff made this payment and two subsequent payments of $5,166.35 and $1,725.35, for a total of $9,391.70. The contract contained the following provision regarding cancellation:

Cancellation under any circumstances is not acceptable and, in addition to forfeiting all deposits, the Patron will remain responsible for paying the entire balance of the contract price (excluding service charge) for the Event even if the Event does not occur.

Unfortunately, six months before the reception was to be held, plaintiff notified defendant that she was cancelling the wedding. Relying on the cancellation provision in the contract, defendant refused to return any of the money Plaintiff had paid under the contract. Plaintiff sued. Both parties moved for summary judgment. After trying to settle the case, the trial court granted defendant's motion and dismissed the complaint. The trial court held that plaintiff "twice breached the contract," although the decision does not explain how. On the issue of damages, defendant argued that the liquidated damages clause was "grossly disproportionate to [any] actual damages sustained by defendant and thus unenforceable as a penalty." The trial court rejected this argument, holding that the terms of the contract were "clear and unambiguous," therefore the court was required to enforce those terms as written.

Plaintiff appealed and the  Appellate Division reversed.

Continue reading “If You Cancel Your Wedding Reception Can You Get Your Money Back From The Venue? (Or, When Is A Liquidated Damage Clause Enforceable?)”

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

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

SlipandfallI 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. 

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

Court Awards Attorney Almost $100,000 Less Than He Requested In New Jersey Consumer Fraud Act Case

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

Legal fees (pd)I recently wrote about Garmeaux v. DNV Consepts, Inc., a case in which the Appellate Division held that, under New Jersey's Consumer Fraud Act, successful plaintiffs can, in certain circumstances, recover legal fees they incurred in connection with both the prosecution of their affirmative claims and the defense against any counterclaims. If the facts relevant to a counterclaim are "inextricably caught up with," and related to the common core of, the facts relevant to an affirmative CFA claim, then legal fees can be awarded for both claims. In another recent decision, Riccardi v. Bruno, the Appellate Division addressed a similar issue but arrived at a result that was less favorable to plaintiff than the result in Garmeaux.

In Riccardi, plaintiff purchased a home from one of the defendants. The home had been damaged in a fire and required "extensive renovations" before being put on the market. (Although it was not listed as having been fire damaged, the certificate of occupancy issued by the township at the closing noted "rehab after fire.") After the closing, plaintiff allegedly discovered numerous problems with the house, including mold, burnt and fractured joists, and damaged foundation walls. He sued the seller and several related entities (architect, contractor, home inspector, etc.), alleging breach of contract and a violation of the CFA.

Default was entered against several defendants for failing to answer the complaint, and the claims against several others were dismissed either by summary judgment or at the close of plaintiff's case in chief. The jury then determined that the two remaining defendants — the prior owners of the property — violated the CFA. The jury's verdict was based on a "knowing concealment, suppression, or omission of a material fact with the intent that other would rely upon that fact." (The decision does not identify the fact that was omitted.) The jury found no cause of action under the CFA based on an unconscionable commercial practice, fraud, false pretense, false promise , or misrepresentation. And, it awarded plaintiff only $4,500, which was "attributable to the cost to repair a damaged window frame and to dispose of buried construction litter."

Continue reading “Court Awards Attorney Almost $100,000 Less Than He Requested In New Jersey Consumer Fraud Act Case”