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Archive for the ‘Tort and Catastrophic Loss’ Category

Georgia Federal Judge Enforces Contractual Liability Limitation, Cuts Jury Verdict in Half

Posted on: September 19th, 2019

By: Jake Carroll

A federal judge in Georgia enforced a limitation of liability clause in a construction contract for engineering services—reducing the jury’s award from $5.7 million to just over $2 million. See U.S. Nitrogen LLC v. Weatherly, Inc., No. 1:16-CV-462-MLB, (N.D.Ga. Sept. 16, 2019).

The case arose from the design and construction of an ammonium nitrate solution plant in Midway, Tennessee. The project owner, US Nitrogen (“USN”), hired Weatherly to provide engineering services related to the construction, and entered into a written contract.

Constructing the plant cost more money and took longer than the parties initially anticipated—to the tune of $200 Million. USN attributed more than $30 million of cost overruns and delays to Weatherly’s design, and brought suit against Weatherly for breach of contract, breach of warranty, professional negligence, negligent misrepresentation, and bad faith.

Following discovery, Weatherly moved for partial summary judgment, arguing that the contract contained an enforceable limitation of liability provision which capped the damages USN could seek to fifteen percent (15%) of Weatherly’s contract price. Weatherly also argued that the terms of the contract prevented USN from recovering consequential damages.

The court agreed with Weatherly—finding that USN could only recover up to $2,203,800 of the more than $30 million it was seeking—and the case proceeded to trial for the jury to determine the amount of damages incurred by USN as a result of Weatherly’s breach. Although the jury ultimately awarded $5,755,000 in damages, the court reduced the award to $2,203,800, pursuant to its earlier findings, and consistent with the terms of the contract. However, the judgment is not final: either party may still appeal the decision to the Eleventh Circuit Court of Appeals.

While Georgia courts have long recognized limitation of liability clauses as valid and enforceable, this case is another example of how carefully drafted contract language can mitigate future risk. Typically, a party’s exposure can be limited to the amount of compensation under the contract, or even less in Weatherly’s case. Such clauses are most frequently seen in contracts for services such as agreements with design professionals and testing laboratories. Nonetheless, there is no reason that they could not be included in general contracts and subcontracts.

If you have questions regarding this decision, or any other contract drafting questions, Jake Carroll practices construction and commercial law as a member of Freeman Mathis & Gary’s Construction Law, Commercial Litigation, and Tort and Catastrophic Loss practice groups. Mr. Carroll represents business and commercial entities in a wide range of disputes and corporate matters involving breach of contract and warranty, business torts, and products liability claims.

The Pennsylvania Superior Court Rules that Snow Contractors Qualify for Liability-Limiting “Hills and Ridges” Doctrine

Posted on: September 18th, 2019

By: Justine Baakman

A three-judge panel of the Superior Court of Pennsylvania recently reaffirmed a snow contractor’s protection from liability during ongoing snow events.  More specifically, the plaintiff initiated a personal injury suit in Pennsylvania state court after slipping and falling on snow in the early morning hours during an ongoing snow event.  The plaintiff arrived on the subject property – an industrial complex – around 5:30am on the date in question.  It was during his walk in the parking lot that he slipped and fell on unplowed snow totaling between 5 ½ and 6 inches.  Notably, the plaintiff did not dispute that his fall occurred during an ongoing snow event.

Prior to the start of the snow event at issue, the property owner had entered into a contract with a snow removal company to perform snow and ice removal services.  On the date at issue, that snow contractor had begun performing services approximately one hour prior to the plaintiff’s fall.  However, snow removal services were not fully completed by the time the plaintiff arrived on the property – primarily due to the ongoing nature of the snow event.

Following the close of discovery, the snow contractor filed a motion for summary judgment, arguing that the “hills and ridges” doctrine protected it from liability for the plaintiff’s alleged injury.  More specifically, the snow contractor argued that the “hills and ridges” doctrine – which protects owners or occupiers of land from liability for generally slippery conditions as the result of snow and ice if the owner or occupier has not permitted that snow and ice to unreasonably accumulate into ridges or elevations – protected it from liability for the plaintiff’s alleged injury as a function of the ongoing nature of the snow event in question.

After hearing oral argument on the issues, the trial court granted summary judgment in favor of the snow contractor.  The plaintiff appealed that ruling to the Pennsylvania Superior Court, arguing that the trial court erred in applying the “hills and ridges” doctrine to the snow contractor because the contractor did not own or occupy the land.  Therefore, the plaintiff argued, the snow contractor did not qualify for liability protection under the “hills and ridges” doctrine.

In reaffirming the trial court’s granting of summary judgment, the Pennsylvania Superior Court noted that it is well-established Pennsylvania law that an independent contractor in possession of an area of land necessary to perform its work under a contract replaces the owner of the property while performing that work.  During that time, the independent contractor assumes the responsibilities and obligations of the property owner while the property owner foregoes its right to possess and control the land.

As such, the Pennsylvania Superior Court reasoned, the snow contractor at issue was operating as an independent contractor in possession and control of the subject property at the time of the plaintiff’s fall.  Therefore, it was entitled to the protections offered by the “hills and ridges” doctrine to occupiers and possessors of land. As such, the snow contractor was entitled to the granting of summary judgment due to the ongoing nature of the snow event at issue.  The court’s decision was a key one for snow contractors, allowing them to continue to utilize this important defense.

If you have any questions or would like more information about the “hills and ridges” doctrine, please contact Justine Baakman at [email protected].

Massachusetts Appeals Court Rules No Immunity for Affirmative Act in Connection with Decedent’s Suicide

Posted on: September 4th, 2019

By: Eric Martignetti

In the recent decision of Williams v. Boston Public Health Commission, the Massachusetts Appeals Court partly reversed the trial court’s dismissal of claims brought by the plaintiff against the Boston Public Health Commission (“Commission”).

The plaintiff alleged negligence against the Commission arising out of the death of the plaintiff’s decedent.  As alleged in the Amended Complaint, the staff at a homeless shelter called 911 to report that the decedent was experiencing suicidal thoughts.  Boston EMS, which is under the control of the Commission, sent an ambulance to the shelter.  The responding EMTs did not restrain the decedent and did not have a police transport to the hospital.  When they arrived at the hospital, the EMTs opened the door to the ambulance, and the decedent ran into the street where she was killed by a car.

The Court stated that the Massachusetts Tort Claims Act (“MTCA”) immunizes public employers from “any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer.”  G. L. c. 258, § 10(j).  Therefore, the Court held that the Commission could not be held liable for its alleged failure to train or supervise the EMTs.

However, the Court stated that the MTCA does not immunize public employers from a claim “based upon the intervention of a public employee which causes injury to the victim or places the victim in a worse position than [she] was in before the intervention.”  G. L. c. 258, § 10(j).  Therefore, the Court held that the Commission could be held liable for placing the decedent in a worse position because the EMTs transported her from the shelter, where the staff was looking after her and securing help for her, to the hospital, where nobody was able to prevent her from killing herself.

The Court rejected the Commission’s argument that the alleged failure to protect the decedent is an omission from which the Commission should have immunity.  The Court concluded that although the failure to train and supervise was an omission, the transporting of the decedent to the hospital was an affirmative act.

The Court also rejected the Commission’s argument that the EMTs owed not duty to protect the decedent from her own conduct because there was no special relationship between her and the EMTs.  The Court concluded that EMTs have a duty of care to the patients they transport.

If you have any questions or would like more information, please contact Eric Martignetti at [email protected].

Let the Music Play On: The Supreme Court of Georgia’s New Test Regarding Immunity Under the Recreational Property Act

Posted on: August 22nd, 2019

By: Jake Loken

Inviting individuals onto your property can lead to the invitation of a lawsuit. Generally, an individual injured on a landowner’s property could file a lawsuit against the landowner.

In Georgia, the legislature has carved out an exception to this general rule and granted immunity to a landowner when the property is being used without charge for recreational purposes. This immunity comes from the Recreational Property Act, and the Supreme Court of Georgia recently clarified the test to determine if this Act applies.

In Mercer Univ. v. Stofer, No. S18G1022, decided June 24, 2019, the Supreme Court explained the two-part test that should be used to determine if the Recreational Property Act applies. The facts of this case surround the injury and then death of Sally Stofer, who attended a free concert hosted by Mercer University at Washington Park in Macon, Georgia. Sally Stofer slipped while ascending stairs at the park and fell, hitting her head.

Under the Act, “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes.” Prior case law, and the lower courts in Mercer Univ. v. Stofer, said the subjective motivation of the landowner when inviting individuals onto their land must be considered when determining whether the invite was for “recreational purposes,” along with whether the landowner would receive an indirect benefit from that invitation.

The Supreme Court stated that those considerations were improper and “the key teachings of our cases can be distilled into a test that is more connected to the statutory text: the true scope and nature of the landowner’s invitation to use its property must be determined, and this determination properly is informed by two related considerations: (1) the nature of the activity that constitutes the use of the property in which people have been invited to engage, and (2) the nature of the property that people have been invited to use.”

The Supreme Court then clarified: “In other words, the first asks whether the activity in which the public was invited to engage was of a kind that qualifies as recreational under the Act, and the second asks whether at the relevant time the property was of a sort that is used primarily for recreational purposes or primarily for commercial activity.”

Any language in prior cases “suggesting that property owners’ subjective motivations may be relevant , . . . [or that the] landowner was motivated by the possibility that it would obtain indirect financial benefits” is relevant, “is disapproved.”

The Supreme Court did not rule on whether Mercer should receive immunity under the Act, but instead, returned the case to the lower court so that court could conduct the newly established two-part test to see if the Act applies to Mercer. Moving forward, the newly established two-part test will be used when determining if the Act applies to grant immunity to a landowner.

If you have any questions or would like more information, please contact Jake Loken at [email protected].

Eastern District of Pennsylvania Finds that School District Immunity does not Extend to Teacher’s Alleged Intentional Torts

Posted on: August 19th, 2019

By: Erin Lamb

An Eastern District of Pennsylvania judge ruled that the Philadelphia School District is immune from a lawsuit wherein a special education student was allegedly choked by his special education teacher. However, District Judge Gerald Pappert also ruled that the plaintiffs, the student and his mother, will still be able to seek punitive damages against the teacher over the allegations.

Plaintiffs allege that in March 2018, a special education teacher grabbed the fifth-grade student by his neck. The teacher was allegedly irate that the student had not put his pencil back in the right place. The Complaint alleges that the teacher choked the student and repeated pushed his head and body against the schoolroom wall, during class, and in front of other students.

The student’s mother sued and has alleged the use of excessive force against her son, deprivation of equal protection, intentional infliction of emotional distress, and assault and battery. She further alleged deliberate indifference by the School District to students’ rights to be free from excessive force because of an alleged failure to adequately train, supervise, or discipline its employees.

Judge Pappert ruled that plaintiffs failed to adequately plead their failure to train claims, and that the school was immune from the intentional infliction of emotional distress and assault and battery claims. Judge Pappert noted that the School District had a policy regarding excessive force that the teacher appeared to have disobeyed and rejected the argument that that immunity extended to the teacher. Plaintiffs’ allegations were sufficient to present a range of punitive damages claims against the teacher under both Section 1983, and the allegations of intentional tort.

Plaintiffs were granted leave to amend the Complaint to attempt “one last time” to allege facts to support her allegations of deliberate indifference against the School District,  but were not granted leave to amend any other claims against the School District.

If you have any questions or would like more information, please contact Erin Lamb at [email protected].

Tucker v. Sch. Dist. of Phila., No. 19-889, 2019 U.S. Dist. LEXIS 136591 (E.D. Pa. Aug. 13, 2019)