Legal solutions through a business lens

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.

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.

If you would like a copy of the Supreme Court’s opinion, please contact Paul Piantino at paul.piantino@fmglaw.com or any attorney at the Newark office.