On February 3, 2023, Sweeney & Sheehan Partners Christopher O’Connell and Frank Gattuso won a defense verdict on behalf of their Retail & Hospitality client after a week-long jury trial in Atlantic County (New Jersey) Superior Court.  The Plaintiff alleged she was injured when she slipped and fell due to improperly maintained floors adjacent to a buffet.  The defense presented evidence that Plaintiff created the condition she eventually fell on.  The jury also heard extensive evidence of prior and subsequent accidents related to the injuries the Plaintiff alleged were caused by the fall.  The jury of 8 rendered a verdict of no cause in favor of the Defendant.

Sweeney & Sheehan partner Louis J. Vogel, Jr. recently obtained summary judgment on behalf of a licensed optometrist and his practice for claims of professional and medical negligence in the New Jersey Superior Court, Law Division, Essex County. Plaintiff alleged that the defendants deviated from the standard of care in diagnosing and treating a retinal detachment, resulting in permanent vision loss, multiple surgical interventions and substantial loss of income. After briefing and argument, the Court agreed with the defendants that the plaintiff had failed to meet their burden of proof.

On December 9, 2022, the Superior Court of New Jersey Appellate Division affirmed a summary judgment order obtained in Hunterdon County by Sweeney & Sheehan Partner Michael Kunsch in favor of a restaurant franchisee. Plaintiffs alleged they sustained injuries when a sinkhole developed under their vehicle while they were exiting the drive-thru. The Appellate Division agreed with the trial court that there was no evidence that the condition existed before the incident or that the defendant had notice of the alleged dangerous condition.

Sweeney & Sheehan Partner Robyn Farrell McGrath recently represented a commercial property owner and received a compulsory non-suit at the end of the Plaintiff’s case in a premises liability action tried in the Philadelphia County Court of Common Pleas. The 51 year old Plaintiff had suffered bilateral lower extremity fractures after falling from a 16’ extension ladder and was claiming permanent disability as a result of his injuries. Plaintiff sued both a tenant and the property owner, arguing that the property owner reserved control over portions of the leased spaced where the accident occurred and over the ladder in question. After three days of trial, the Court agreed that the property owner owed no duty to the Plaintiff under the circumstances presented in the case and granted a non-suit to the property owner. The trial proceeded against the co-defendant tenant to a Plaintiff’s verdict.

On July 15, 2022, Sweeney & Sheehan Partner Michael Kunsch won a unanimous defense verdict in a product liability case following a 4 day jury trial in the Eastern District of Pennsylvania. The Plaintiff sustained injuries after falling from a steel rolling tower scaffold in the course of his employment as a union carpenter. At trial, Plaintiff pursued a consumer expectations theory of design defect against the distributor of the scaffold.

Sweeney & Sheehan Partner Lou Vogel secured a defense verdict in a damages only trial arising from a commercial vehicle motor vehicle accident in Ocean County, New Jersey.  Plaintiff’s post-accident treatment included 4 lumbar injections and lumbar fusion, followed by additional injections, medial branch blocks, and radio frequency ablation. In addition, she has an additional rhizotomy scheduled. Plaintiff’s demand was $1,000,000. The Jury awarded no damages.

Sweeney & Sheehan partner Robyn Farrell McGrath won a Rule 12 dismissal of a civil rights case in the U.S. District Court for the Middle District of Pennsylvania. In dismissing the claims brought by the Estates of two minors who were killed in an arson fire against a youth services organization of which the children’s family was a client, the Court found that the Estates had failed to state a claim for violation of the rights to procedural and substantive due process.

Sweeney & Sheehan partner J. Michael Kunsch obtained a defense verdict in a product liability case following three days of trial before Judge Mariani in the Middle District of Pennsylvania. Plaintiff claimed injury resulting from an alleged defect in a stepladder. The defense established that the ladder was not defective and did not cause the incident.

Sweeney & Sheehan Partner J. Michael Kunsch obtained summary judgment in the Eastern District of Pennsylvania following a successful Daubert challenge of plaintiffs’ liability expert in a product liability case. Plaintiffs asserted claims of strict liability, negligence and breach of warranty against the manufacturer and seller of a fiberglass stepladder. The husband-plaintiff fell off the ladder in the master bathroom of his home while painting a skylight. He had positioned the ladder on a tarp, and claimed the ladder feet slipped and caused his fall. The ladder contained a warning to “Set all four feet on a firm level surface. Do not place on unstable, loose or slippery surfaces.” Despite the presence of that warning, plaintiffs’ engineering expert opined that the ladder should have had a specific warning about the danger of the ladder slipping when placed on a tarp on a smooth tile surface. The Court found the expert’s opinion did not satisfy the Daubert reliability and fit requirements, noting that he made no inspections of the ladder or scene, performed no tests, cited no relevant industry standards, offered inconsistent opinions, and simply accepted plaintiff’s testimony about how the accident happened. After precluding the expert, the Court further found that no reasonable jury could conclude that the ladder was defective and entered summary judgment.

Associates Neal Thakkar and Joe Hauschildt recently prevailed in New Jersey’s Appellate Division in Lassandro v. Pep Boys, a case involving the intentional wrong exception to the exclusive remedy provision of the Workers’ Compensation Act. Under the Act, if an employee is entitled to recover workers’ compensation benefits, he is barred from suing his employer in tort unless the employer committed an intentional wrong. To overcome the bar, the plaintiff must prove that the employer’s act was substantially certain to result in injury or death, and that the resulting injury was plainly beyond what the legislature intended to immunize. This is a formidable standard that permits a plaintiff to recover in tort only under the most egregious of circumstances.

Here, the plaintiff was a service technician at Pep Boys, and he was injured while loading a vehicle onto a lift when the lift suddenly dropped, causing him to fall and injure his knee. The lift’s safety mechanisms had been disabled by another technician for convenience, but not at the direction of management. There had been no prior close calls with the lift, and the modification did not increase profit or productivity at the expense of safety. The evidence did show, however, that Pep Boys should have been aware that the safeties were defeated, and that it permitted the condition to exist for at least two years.

Plaintiff recovered workers’ compensation benefits, but sued Pep Boys for damages. The trial court denied summary judgment, but the Appellate Division granted leave to appeal and reversed. In its opinion, the court found that while Pep Boys’ conduct was arguably negligent, creating a risk of injury by omission is not tantamount to acting with the substantial certainty that an injury would result. Further, the court held that the injury suffered by plaintiff was not one that plainly beyond what the legislature intended to immunize, as the nature of the plaintiff’s employment led to the risk of injury.

Joe Hauschildt, a former Appellate Division clerk, wrote the brief, and Neal Thakkar argued the case. The opinion can be found here: http://www.njlawarchive.com/201606101025091314065283