This is a review of a premises liability claim which evolved into a lawsuit. The claim arose when a pedestrian was severely injured by a piece of ice which fell from the roof of a two-story building.
The controversy arose when the owner of the building denied liability for the pedestrian's injuries. The denial was based on the building owner's contention that they had used the services of a building management company and that it was the management company who was liable for the pedestrian's injuries.
The pedestrian filed a premises liability lawsuit against both the owner of the building and the management company. The pedestrian's lawsuit sought damages for her injuries and resulting medical bills, out-of-pocket expenses, lost wages, and the pain and suffering she endured, and would continue to endure.
Upon being served with the pedestrian's lawsuit, the owner filed a Motion for Summary Judgment asking the court to dismiss the lawsuit against them.
On the morning of February 23rd, 2011, Susanna Johnston was approaching the Bristling Building where she worked as an attorney for a local construction company. The weather was cold and icy, and it had snowed the night before. As Johnston was about to open the front door to the building, she was suddenly struck in the head by a large piece of ice.
The force of the impact was enough to knock Johnston unconscious. Some passersby saw her and came to her aid. One of the passersby called 911, and Fire and Rescue soon arrived on the scene. Johnston was taken by ambulance to the local emergency room where she was treated for a concussion, lacerations, contusions, and abrasions to her head and face.
The police questioned witnesses at the scene. Several told the officers that minutes before Johnston was hit several other large pieces of ice fell close to where Johnston was hit. They told the police they felt lucky they weren't also hit. The police cordoned off the area and refused to allow any other persons to enter or leave the building until it was deemed safe to do so.
Johnston was released from the hospital 24 hours later. It took 23 stitches to close the gash to her head, and several more to close the lacerations to her face. The doctors ordered her to remain away from work for at least thirty days so her face and head could heal. Johnston soon after retained an attorney and filed suit against the owner, Cush and Wakeman, and the building management, BCD Management.
Her lawsuit asked for reimbursement for her medical bills which amounted to $7,000, her out-of-pocket expenses which amounted to $2,100, her lost wages of $6,200, and pain and suffering in the amount of $1,000,000.
After being served with the suit, Cush and Wakeman filed their Motion for Summary Judgment. Cush and Wakeman asked the Court to hear their Motion prior to the commencement of the trial.
In their Motion for Summary Judgment, the owners, Cush and Wakeman, claimed they should not be held responsible for the injuries to the pedestrian because they had contracted with the management company, BCD Management, to keep ice cleared from the roof of the building.
The owners introduced into evidence an insurance policy they required the management company to purchase. The purpose of the insurance policy was to indemnify the owners from legal action brought by third parties against the owners for injuries sustained as a result of the management company's dereliction of its duties to maintain the building's perimeters and roof.
Cush and Wakeman went on to argue they used due diligence in the hiring of BCD Management. They argued BCD Management was the same management company they used for the last seven years. Through those seven years BCD Management was responsible for the clearing of ice from each of its 14 buildings. Although there were several ice storms during those years, BCD never failed to keep each building's roof free from ice. There were no injuries to any tenants or visitors as a result of inadequate maintenance.
Relying on that premise, Cush and Wakeman argued they had a right to rely upon BCD Management to insulate them from injuries suffered by visitors and tenants to the buildings BCD managed for them. If the Court accepted their argument then there would be no remaining material facts or issues of law for a jury to decide. The case, they argued, would then only be between Johnston and BCD Management.
BCD Management itself was in a precarious position. BCD managed 14 of Cush and Wakeman's buildings. If they opposed Cush and Wakeman's Motion and fought to keep them in the lawsuit as a co-defendant, it was altogether possible their business relationship and future management contracts would be severely affected. As a result, BCD management did not object to Cush and Wakeman's Motion.
Johnston and her attorney refused to agree with Cush and Wakeman's Motion. They argued Cush and Wakeman and BCD Management should remain individually and collectively liable. Johnston said there were enough material facts in the lawsuit to be presented to the jury so as to make a legitimate controversy between both defendants and themselves.
Allowing Cush and Wakeman to be removed from the premises liability claim & lawsuit would leave only BCD Management as the defendant. Johnston's attorneys wanted both defendants to remain in the suit so both could be found liable and have to pay Johnston substantial damages.
After hearing the arguments of counsel for all 3 parties the court ruled as follows:
"We have been asked to consider whether an indemnification agreement is sufficient to insulate a party from responsibility for damages incurred by a third party. We are unable to hold that all co-defendants in all lawsuits involving personal injuries to third parties are automatically insulated and therefore not responsible for injuries to third parties. Instead, we must take each case on its own merit.
In this case Cush and Wakeman demonstrated to the court they used due diligence in their hiring of BCD Management. Inasmuch as they relied successfully on BCD Management for at least 7 years we must consider Cush and Wakeman to be without fault.
Without the presence of fault there remain no material facts or issue of law for a jury to decide against Cush and Wakeman. We therefore grant the defendant Cush and Wakeman's Motion for Summary Judgment."
*This case example is for educational purposes only. It is based on actual events although names have been changed to protect those involved. Any resemblance to real persons or entities is purely coincidental.
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