Tort & Catastrophic Loss

FMG Attorneys Wayne Melnick and Allyson Brumett secured summary judgment on all claims brought against FMG’s client, the employer of an individual who was involved in a motor vehicle accident and received a DUI while driving a company vehicle after hours without permission on his way home from drinking with friends. The plaintiff brought claims against FMG’s client for vicarious liability; negligent hiring, retention, entrustment, training and supervision; and punitive damages. The Court granted FMG’s motion for summary judgment as to all claims, finding that the employee was not acting within the course and scope of his employment at the time of the accident.

Tierra Thomas v. ER Snell Contractor, Inc. and Arturo Morales; State Court of Gwinnett County, Georgia; Case No. 24-C-0-7729-S1.

FMG attorneys Wayne Melnick, Michael Freed and Allyson Brumett secured the dismissal of a tortious interference with contract claim filed against the parents of a student at the Torah Day School of Atlanta. The claim was filed by the parents of another student whom the school had expelled for various acts of misconduct. The plaintiffs alleged that several students, including the child of FMG’s clients, had bullied their son and that FMG’s clients induced the school to breach its enrollment agreement. The court’s rulings that the school did not breach the contract and that the plaintiffs suffered no damages even if a breach occurred crippled their tortious interference claim, leading to its dismissal.

Braunstein v. Torah Day School of Atlanta et al.; Superior Court of DeKalb County, Georgia; Case No. 20CV5224.

FMG attorney Spencer Sukel prevailed on a motion for summary judgment in a high-stakes landlord-tenant premises liability action. The plaintiff alleged she sustained severe injury due to a defective staircase and sought to recover $300,000. The Court agreed that FMG’s client owed no duty to the plaintiff because it did not have actual or constructive notice of the alleged defect and dismissed all of the plaintiff’s claims.

Lisa Halitzka v. Sandstone Realty; Lorain County Court of Common Pleas, Ohio; Case No. 24CV213826.

FMG attorney James Mathew received a defense verdict on behalf of Domino’s. The plaintiff alleged that a Domino’s delivery truck collided with his car, causing noticeable damages including scratches and dents. Testimony established that the plaintiff originally claimed a rock hit his car, and at trial, he later admitted he did not know what caused the damage. Ultimately, the judge found in favor of our client.

Yves Nadie v. Domino’s Pizza, Inc.

FMG partners Paul Bigley and Jason Dineros successfully defended an admitted liability, catastrophic, head-on, auto accident case involving a 20-year-old paraplegic in a jury trial in Alameda County, California. Plaintiff sustained a T12 burst fracture that necessitated emergency spinal surgery and resulted in immediate lower extremity paralysis, ongoing low back, hip, knee and ankle pain, lifelong mobility restrictions and other bodily issues. The parties stipulated to past economic damages of approximately a hundred thousand dollars, future economic damages (life care plan) of $5,317,893.50, and a life expectancy of an additional 52 years. The jury only needed to determine past and future non-economic damages. Plaintiff requested $11.8-$14.75 million for past non-economic damages and $26-$31.2 million for future non-economic damages, for a total request of $37.8-$45.95 million in non-economic damages. The jury returned a verdict for $2.5 million in past non-economic damages and $9 million in future non-economic damages—a total of $11.5 million in non-economic damages.

Michael Harvey v. John Clawson; Superior Court for the State of California for the County of Alameda; Case No. 22CV017674

FMG attorney Sharon Collier parachuted into this case after the close of discovery and shortly before trial. The case involved an admitted liability and causation rear-end accident. The plaintiffs claimed significant orthopedic injuries, including a past thoracic spine discectomy and fusion, as well as future surgeries and extensive future treatment. The only question the jury was tasked to decide was how much to award the two plaintiffs. Although the plaintiffs asked the jury to award a total of $15,084,523, after trial, the jury awarded only a fraction of that amount.

Timothy and Cory Whittier v. HF Foods Group, et al., San Diego County Superior Court Case No. 37-2023-00046627-CU-PA-NC

FMG attorneys James Fairbanks and Jason Cooper secured a successful verdict on a damages trial for a nationwide trucking company. The plaintiff claimed extensive back injuries resulting from a major collision, even though he suffered from multiple degenerative conditions. At trial, the plaintiff sought over $1.2 million in damages. The jury returned a verdict limiting plaintiff’s recovery to less than half of the amount sought.

Joseph Roper v. Crete Carrier Corporation and Clayton Cook; United States District Court, District of Colorado; Case No. 1:23-cv-02100-PAB-SBP

FMG Attorney Dustin Karrison successfully defended a country club in a negligence suit in Maryland after the plaintiff slipped and fell on ice, causing him to sustain a significant ankle fracture that required two surgeries and sought just under $1,000,000. FMG obtained a defense verdict after a three-day jury trial.

Wesley Hodges v. Concert Woodmore, LLC; Circuit Court of Prince George’s County, Maryland; Case No. C-16-CV-24-001571

Barry M. Miller, Lucas R. Harrison and Sean C. Harrison prevailed on a motion for summary judgment in the United States District Court for the Western District of Kentucky on behalf of a nationwide insurance carrier. The Court determined the insurer had no duty to provide coverage to two oil drilling companies and other involved individuals in an underlying injury suit concerning an oil well explosion due to material misrepresentations made by the named insured during the insurance application process.

Century Surety Co. v. Dwight A. Herald et al.; United States District Court for the Western District of Kentucky; Case No. 1:23-CV-00086-GNS-HBB

FMG Attorneys Jessica Farrelly and Jessica Cauley prevailed on a motion for summary judgment in a Broward County, Florida court on claims of negligence and breach of fiduciary duty against their client, a substance abuse treatment provider. The case involved Plaintiff’s admission to the provider’s treatment facility, during which Plaintiff overdosed. Plaintiff testified during the case that he knowingly concealed illegal drugs from staff during the search of his personal belongings when he was admitted to the facility. Once he was alone, Plaintiff consumed the drugs and overdosed. FMG’s client provided life-saving treatment before Plaintiff’s transfer to a nearby hospital.

The Court agreed that Plaintiff could not proceed to a jury trial on his claims because he admittedly acted in violation of the facility’s policies and caused his own injuries. The Court further determined that FMG’s client was entitled to recover its attorneys’ fees and costs pursuant to a Proposal for Settlement served earlier in the litigation.

Zachary Wallace, by and through, Clayton John Wallace, Attorney-in-Fact v. Legacy Healing Detox, LLC, et al, Civil Action No. CACE22004466, Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida

FMG attorneys Jimmy Scarbrough, Andy Treese, and Jake Daly obtained a defense verdict in a wrongful death trial involving a pedestrian who was struck and killed by a MARTA bus in 2019. MARTA and the driver denied liability and contended that the pedestrian was the cause of the accident because she was crossing the street at night without using a crosswalk. The pedestrian’s decisions combined with the glare from the headlights of oncoming traffic and the fact that she was wearing dark clothes, caused the driver to be unable to see her standing in the middle of the road. The Plaintiff asked for damages of $14.5 million to $19 million for pre-accident shock and fright, post-accident pain and suffering, and wrongful death. The jury returned a defense verdict for MARTA and its driver.

Calvin White, as the natural son and administrator of the Estate of Priscilla White, v. Tony Paulk and Metropolitan Atlanta Rapid Transit Authority (MARTA), Superior Court of Fulton County, State of Georgia, Civil Action File No. 2021-CV-355084

FMG attorneys Kingshuk Roy and Dustin Karrison successfully defended an owner and property management company at trial. The plaintiff sought $99 million in damages from the jury for paraplegic injuries sustained as a result of a gunshot wound. He alleged the defendants were negligent in securing the premises from third-party criminal acts. The jury assessed 17.5% fault against the plaintiff and awarded a net verdict of $9.68 million, an amount substantially less than the $99 million Plaintiff sought. Prior to trial, the plaintiff demanded an offer of $10 million as a pre-condition to negotiations.

Brown v. East Lake Management Group, et al, Case No. 2021 L 7588.

Friendship Enterprises, Inc., d/b/a Elevation Chophouse v. Hasty, (Ga. Ct. App.). The Georgia Court of Appeals recently granted a petition for interlocutory review filed by Atlanta Partners Wayne Melnick, Michael Freed, and Wes Jackson, of the trial court’s denial of a motion for summary judgment. The appeal involves important issues bearing on respondeat superior liability and its interplay with the premises liability standard when an employee’s allegedly tortious actions were outside the course and scope of his employment.

Deaton Holdings, Inc. v. Reid, Case No. A23A0005 (Ga. Ct. App.). The Court of Appeals of Georgia recently granted a petition for interlocutory review filed by Atlanta Attorneys Wayne Melnick, Michael Freed, and Eric Retter in case presenting an issue of first impression. That issue is whether the defendant in a single defendant tort case can require the joinder of other potentially responsible nonparties. The appeal was necessitated by the Georgia Supreme Court’s holding in Alston & Bird v. Hatcher, that nonparty apportionment of fault is unavailable in single-defendant cases. As a result, appellants argue, potentially responsible nonparties are necessary and indispensable under Georgia law, and must be joined as defendants. The Court of Appeals will hear oral argument in December 2022.

Kevin Kenneally and William Gildea in FMG’s Boston office, won a post-trial motion for JNOV to overturn a $750,000 judgment awarded in favor of the Estate of a nursing home resident who allegedly died as a result of “neglect.” The nursing home contended the resident suffered a witnessed hemorrhagic stroke. The post-trial decision found that several evidence errors would have required a new trial, but since the plaintiff lacked standing to proceed with the claim, judgment was entered for FMG’s client, and the case was dismissed.
The claimant’s attorneys initially pursued wrongful death damages along with conscious pain and suffering and punitive damages claims. On the eve of trial, the lawyers waived rights to wrongful death claims and the jury awarded damages only for “conscious pain and suffering” (punitive damages were rejected by the jury). As argued throughout, the Estate had no rights to recover conscious pain and suffering damages because the right to litigate over such an asset of the estate was lost by the lawyers’ failure to timely probate the estate. FMG renewed this argument post-verdict and the Superior Court agreed there was no subject jurisdiction over the only claim on which the Estate prevailed, which required entry of judgment against plaintiff.

FMG Attorneys Marc Bardack and Wes Jackson obtained a defense verdict for client homeowners sued by their downhill neighbors for allegedly creating and maintaining a continuing nuisance and trespass due to excess surface water runoff from our clients’ property onto the plaintiffs’ property. The jury found our clients not liable, while allocating fault to the neighborhood homeowners’ association, the builders of the parties’ homes, and to one of the plaintiffs while awarding no damages.

An Eastern District of Pennsylvania judge has ruled that Tyson Foods, Inc. (“Tyson”) is immune from liability for claims asserted by the family of a supervisor at a Philadelphia meatpacking plant who died of complications from COVID-19. The claims were dismissed as the Pennsylvania Workers’ Compensation Act (“PWCA”) is the exclusive remedy for job-related injuries. Although the Plaintiff argued only one entity could be immune under the PWCA, the court disagreed finding that Tyson, as a parent company exercising workplace control, was also immune from liability. Plaintiff alleged the meatpacking plant at which her deceased husband worked, was “owned, supervised, and controlled” by Tyson although he had been employed by Original Philly Holdings. She further claimed that Tyson’s COVID-19 safety measures were inadequate resulting in her husband’s exposure to COVID-19 and related death. She claimed Tyson could not be considered an employer under the PWCA because the Act only allows for one entity to be deemed an “employer” under the Act.

The Court rejected Plaintiff’s contention noting that Pennsylvania courts have explicitly held that an employee may have more than one employer for purposes of the Act. The critical issue for purposes of immunity is whether the entity has the right to control and direct the method and manner of work employees perform. Plaintiff’s allegations demonstrated that Tyson met the definition of employer for purposes of the Act. Specifically, the Plaintiff alleged Tyson “owned, operated, managed, and otherwise controlled” the meatpacking plant and “sell[s] meat products under the brand name Original Philly Cheesesteak.” The Plaintiff further contended that it was Tyson’s own failure to implement adequate safety precautions which resulted in her husband’s illness, and ultimately, death. Under the circumstances, the exclusivity provision of the Act mandated dismissal with prejudice of the tort claims asserted against Tyson.

Paul Piantino and the Aviation Practice Team secured a big win on summary judgment in New York Supreme Court in Erie County this past November. The case centers around the “duty to warn” and liability with respect to snow removal, a topic FMG has a great deal of expertise in.

Plaintiff was an employee of a private aircraft charter which leased certain sectors from Defendant Airport as part of its business activities. During a snowstorm at the Airport, Plaintiff was allegedly severely injured when she slipped and fell on ice. Plaintiff alleged that she was assisting in the removal of an airplane that had gone off the runway due to snowy and icy conditions. The aircraft left the runway on to a grassy area and had to be towed out. Plaintiff herself was assisting in towing the aircraft out at the time of her injury.

Plaintiff maintained that Defendant acted negligently in creating and allowing a dangerous condition and failing to display proper warning notices so that the pilot would be aware of the end of the runway in snowy conditions. In addition, Plaintiff brought a New York Labor law claim arguing Defendant had a general obligation to protect the health and safety of all employees operating in the area of the Airport. FMG represented the Airport Authority who operated the Airport.

Defendant was able to demonstrate that it was not required to erect a warning sign and the lack thereof was not a significant factor in causing the injuries that resulted to Plaintiff. Additionally, Defendant relied on the “snow in progress” doctrine. Specifically, while a storm was in progress, Defendant had no obligation to plow, sand or otherwise clean the area. Defendant did, however, choose to plow the area to make it possible for the grounded plane to be removed. As such, Defendant Airport had a duty to “not exacerbate or create a dangerous condition.” (Wheeler, 31 A.D.3d at 993) In the Court’s view, Defendant did not- they simply plowed the area to assist in the plane’s removal.

Additionally, it was ascertained that Defendant had neither actual nor constructive notice of the alleged icy conditions as this condition was allegedly present for less than one hour prior to the incident, and further, no complaints were received during that time. Lastly, it was determined that Plaintiff’s labor law claim was meritless because Plaintiff was not considered an employee of Defendant, and as such, Defendant did not have a duty to warn Plaintiff of “potentially dangerous machinery, equipment, and devices” (N.Y. Lab Law §200(2) (McKinney))

This is a notable case under New York law that touches on several vital and recurrent themes in tort law, especially as we head into the winter season. This case provides guidance when defending snow removal and “duty to warn” cases for FMG’s Tort and Catastrophic Loss Practice Section.

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