Decisions of Interest

Firm Obtains Complete Defense Verdict at Trial in Staten Island, NY

In July 2017, the firm obtained a complete, and unanimous, defense verdict in Richmond County Supreme Court (Staten Island, New York) in the case of Gwenetta Johnson v. Project Hospitality after a weeklong jury trial. The pre-trial demand was $11,000,000.00. Our firm represented a not-for-profit, Project Hospitality, which provides supportive housing for the homeless. The case was defended by Daniel J. McCarey and the trial was second chaired by Jennifer N. Plant.

Plaintiff alleged that she slipped and fell on ice on the steps leading to/from her house which was leased to her by Project Hospitality. She claimed that she sustained permanent, physical injuries as a result of her accident. Our firm was able to demonstrate to the jury that Project Hospitality was an out-of-possession lessor that did not own the premises and that Project Hospitality was not responsible for the subject stairway pursuant to statute, contract, or a course of conduct.

Firm Obtains Summary Judgment on Behalf of Temporary Staffing Agency and Its Employee

The Law Office of Daniel J. McCarey, LLC recently obtained summary judgment in favor of its clients in the case of Banahene v. Crate & Barrel, et al. The case was pending in Middlesex County New Jersey Superior Court and, after briefing and oral argument, Judge Cresitello issued an 18-page decision.

In this case, the Plaintiff was injured when heavy boxes fell off of a forklift causing him to sustain a fracture requiring open reduction internal fixation surgery along with hardware installation. At the time of the accident, Plaintiff was working in a Crate & Barrel warehouse. Plaintiff had been placed there via his temporary staffing agency. We represented the individual who operated the forklift (JC), who was also placed at Crate & Barrel’s warehouse by a temporary staffing agency, Miller Staffing.

Plaintiff obtained significant recovery for his injuries via his temporary staffing agency’s workers compensation carrier. He then sued Crate & Barrel, JC, and Miller Staffing, claiming that they all were negligent in causing his injuries. Plaintiff settled with Crate & Barrel via a confidential agreement and the case proceeded versus JC and Miller only.

Our firm was able to extract both of its clients from this lawsuit which was otherwise scheduled to go to trial in this notoriously Plaintiff-friendly venue by demonstrating the absence of liability on the part of each client under two very distinct theories.

First, as to JC, we were able to establish, via written and oral discovery, that Crate & Barrel was the “special employer” of both Plaintiff and JC, as both Plaintiff and JC were placed at Crate & Barrel’s warehouse by their respective temporary staffing agencies, neither of whom controlled any aspect of their work at the warehouse. We were able to prove that Crate & Barrel trained, managed, supervised, directed, and controlled every aspect of both JC’s and Plaintiff’s work at the warehouse. Therefore, under New Jersey’s Workers Compensation Act and the common law interpreting same, we were able to establish that they were co-special employees of Crate & Barrel at the time of Plaintiff’s accident. Since co-employees cannot sue each other for personal injuries sustained on the job when one of them negligently injures the other, the court dismissed JC from the suit.

As to Miller Staffing, the analysis was wholly distinct. In order to extricate Miller Staffing, we relied on respondeat superior and vicarious liability theories. Plaintiff had been asserting that regardless of whether JC was liable to Plaintiff, Miller Staffing was ultimately responsible for the allegedly negligent acts of JC. However, we were able to demonstrate that since Crate & Barrel, not Miller Staffing, controlled virtually every aspect of JC’s work at Crate & Barrel’s warehouse, Miller Staffing could not be held responsible for JC’s purported negligence in causing Plaintiff’s accident. In an attempt to demonstrate that Miller Staffing maintained control over JC, Plaintiff argued that Miller Staffing paid JC’s salary and retained the ability to fire him. However, this argument was unavailing to the court because the threshold test is which entity had “on-spot” and “broad” control over JC while he worked at Crate & Barrel’s warehouse.

Since Plaintiff failed to demonstrate that Miller Staffing exercised on-spot or broad control over JC while he worked at Crate & Barrel’s warehouse, the court found that Miller Staffing was not liable to Plaintiff and issued summary judgment in Miller Staffing’s favor as well. As Plaintiff had previously settled with Crate & Barrel, the issuance of summary judgment to JC and Miller Staffing effectively ended this litigation in its totality and Plaintiff’s compensation for the injuries he sustained in this accident was limited to his collection of significant amounts of money via workers compensation insurance, which was what was intended by the Workers Compensation Act all along.

Firm Obtains Summary Judgment for Bright Horizons

The firm recently successfully obtained summary judgment in the case of Terry v, Southfield Crown Realty v. Bright Horizons Children’s Centers. The 13-page written decision was authored by Judge Pitchford of the Middlesex County New Jersey Superior Court. The case was otherwise scheduled for trial just a few weeks later in this Plaintiff-friendly jurisdiction.

The case involved a Plaintiff who tripped and fell, sustaining injuries on an alleged sidewalk defect at defendant Southfield’s large commercial building complex. Plaintiff worked for Bright Horizons daycare and was not sued directly by the Plaintiff.

Bright Horizons had a commercial lease with Southfield wherein Bright Horizons specifically leased only the Ist floor of the building and the adjacent playground area. The lease also specifically provided that Southfield was to maintain and repair the subject sidewalk where Plaintiff’s accident occurred.

Southfield moved for summary judgment against Bright Horizons alleging entitlement to contractual indemnity and additional insured status. In turn, Bright Horizons cross-moved for summary judgment.

In our briefs and at oral argument, we were able to demonstrate that the indemnification provision in the lease was not triggered and that Southfield’s sidewalk maintenance obligation set forth in the lease trumped the purported indemnity provisions. Further, we successfully established that the indemnity provisions asserted against Bright Horizons were not compliant under controlling New Jersey law and that any ambiguity in the terms of the lease were to be construed against the drafter of the lease, Southfield.

As to additional insured coverage, while acknowledging that Southfield was, in fact, an additional insured under Bright Horizon’s insurance policy, we successfully argued that Southfield was not an additional insured for this accident because the incident occurred on a portion of the premises that was not leased by Bright Horizons and which the lessor, Southfield, was solely responsible for maintaining.

Law Office of Daniel J. McCarey Obtains Summary Judgment for New Jersey’s Grounds for Sculpture

The firm recently obtained summary judgment for its client Grounds for Sculpture in Mercer County New Jersey Superior Court. Grounds for Sculpture is a New Jersey non-profit entity, which exists to promote an understanding of, and appreciation for, contemporary sculpture. Plaintiff claimed that, while on a tour of the Grounds for Sculpture premises, she slipped and fell, sustaining personal injuries. Our firm was able to move for summary judgment prior to depositions and significant discovery by submitting proofs demonstrating that Grounds for Scupture is a non-profit entity formed for education purposes and that plaintiff was a beneficiary of its charitable works.

Firm Obtains Summary Judgment in Bronx, New York Supreme Court on Behalf of Non- Profit

The firm obtained summary judgment in Bronx County New York for our client Acacia Network, a non-profit. In Knight v. Acacia Network, Inc., et al., Plaintiff, an individual for whom Acacia provided refuge in a women’s shelter, claimed that she sustained injuries in two distinct accidents while residing at Acacia’s shelter.

Plaintiff first claimed that she was injured when she slipped on a clear, water-like substance that was located near a hallway adjacent to her room. However, we elicited deposition testimony that she knew about the liquid’s existence outside her door for many hours prior to her accident and that she took no action to clean it or to alert the maintenance staff.

Plaintiff further claimed that a few days later, she was in the laundry room of the shelter while on crutches from the first accident when she slipped on water on the floor. She looked back to allegedly see water coming from the general direction of the washing machine that she had just put the clothes in.

We moved for summary judgment with regard to the first accident arguing that the liquid on the ground was open and obvious and that Plaintiff was the sole proximate cause of her own accident. The court agreed and found that the liquid was not an inherently dangerous condition given Plaintiff’s knowledge of its existence and that it was clearly open and obvious.

As to the second accident, the court also granted summary judgment to our client, finding that Acacia had no prior actual or constructive knowledge of the alleged defective condition and that Acacia did not create such condition.