MG+M Boston Attorneys Kevin Hadfield and Christos Koutrobis successfully obtained judgment on the pleadings for its client in Shepard v. AG Realty Investment, LLC, WWM-CV18-6014773-S, a personal injury case brought in the Connecticut Superior Court for the Judicial District of Putnam.

Plaintiff, a police officer, was attacked and bitten by a dog while executing a search warrant at an apartment building owned by MG+M’s client. In his complaint, Plaintiff stated that the dog was owned by a friend of the landowner’s tenant. Plaintiff claimed that the landowner should nevertheless be held liable because he was aware of, but did nothing to quell, significant alleged criminal activity on the premises. The alleged criminal activity resulted in Plaintiff’s need to be present on the property in his official capacity as well as the subsequent dog bite. Plaintiff asserted premises liability negligence claims in his complaint.

MG+M moved to strike the Plaintiff’s complaint for failure to state a claim. As grounds for its motion, MG+M argued that pursuant to the common law “firefighter’s rule,” a landowner owes no duty of care to a first responder that enters the premises within the scope of his official duties. In fact, the Connecticut Supreme Court has made clear that “under the firefighter’s rule, the landowner generally owes the firefighter or police officer injured on his property only the duty not to injure him willfully or wantonly . . . .” Levandovski v. Cone, 267 Conn. 653, 654 (2004) (internal citations and quotations omitted).

Plaintiff opposed MG+M’s motion, asserting that the claims were based on principles of “ordinary” negligence, rather than premises negligence, and were therefore excluded from the protections afforded by the firefighter’s rule. Plaintiff attempted to draw parallels between his case and Sepega v. DeLaura, 326 Conn. 788 (2017), in which the Connecticut Supreme Court permitted a case sounding in ordinary negligence to proceed against a landowner that actively barricaded himself into a house, forcing the officer to break the door down, resulting in injuries. The Superior Court rejected Plaintiff’s comparison, and held that the Sepega Defendant’s “active” negligence created an immediate hazard for the Plaintiff who had already entered the premises, which was distinguishable from the “passive” defective premises negligence allegations set forth in Plaintiff’s complaint.

In its memorandum of decision granting MG+M’s motion, the Court highlighted Plaintiff’s failure to allege that AG Realty had any knowledge of the presence of the dog that allegedly attacked the Plaintiff and also failed to assert factual allegations that would suggest willful or wanton misconduct on the part of the defendant. The Court struck plaintiff’s complaint and entered judgment on the stricken complaint in MG+M’s favor.

This common-sense application of the “firefighter’s rule” affirms the protections afforded to landowners from lawsuits by first responders, who may enter their premises at any time, from any direction, without invitation or warning, and without prior notice and opportunity to the landowner to remedy potential defects on the property. The rule prevents landowners from being held to an
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Inland_cat_sailboatThe rules of civil procedure are thrust, like harpoons, upon young lawyers during their first year of law school, and for good reason.  Failing to abide by any number of a jurisdiction’s various rules sections, subsections, and clauses can result in instant death to your client’s cause of action or defense.  For example, we know that under Rule 12(b) of the Federal Rules of Civil Procedure, motions asserting the defense of personal jurisdiction must be made before filing a responsive pleading, and can be deemed waived if not raised in such a motion or the responsive pleading itself.

Though there are various exceptions to the time-to-plead rules, the importance of getting a personal jurisdiction challenge front and center before the court early on in the litigation process applies to most jurisdictions, and a failure to do so can undermine the defense altogether.  A defendant learned this lesson the hard way in a recent case before the Rhode Island State Supreme Court.

In Pullar v. Cappelli, No. 2015-303 (R.I. 2016), the plaintiff (and former Rhode Island resident) met the defendant (a New York resident) in New York to negotiate a contract for employment, in which the plaintiff was to serve as captain of the defendant’s sailboat for a term of three years, with an annual salary and promise of bonus amounting to one year’s salary at the conclusion of the contract.  One month before the contract was set to expire, the defendant terminated the plaintiff’s employment without cause, denying the skipper his bonus.  The plaintiff subsequently filed suit for breach of contract to recover the money owed him.

In his initial answer, the defendant asserted that the subject venue, Rhode Island, did not have personal jurisdiction over him.  Nevertheless, the case proceeded for the next three years, through virtually all stages of litigation.  The defendant served written discovery, took the plaintiff’s deposition, filed discovery motions with the court, participated in court-annexed arbitration, rejected the arbitration award, and requested a trial assignment.  After the case was assigned for trial, and more than one year after the conclusion of arbitration, the defendant moved for summary judgment, asserting a lack of in personam jurisdiction.

On appeal after the trial court granted the defendant’s motion, the Rhode Island Supreme Court did not waste any breathe analyzing whether the defendant had minimum contacts with the state to satisfy the jurisdictional requirements of the long arm statute.  Recognizing that the defendant properly preserved the jurisdictional defense by raising it in his answer, the Court rejected the notion “that preservation of the defense is inviolable simply because it was raised in the answer.”  Relying on the analogous Rule 12 of the Federal Rules of Civil Procedure and interpretive case law, the Court concluded that simply asserting a jurisdictional defect in an answer does not preserve the right to raise the defense indefinitely.  Adopting the forfeiture doctrine developed by the federal court, the Supreme Court held that the defendant’s conduct prior to asserting his jurisdictional defense gave the
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Lady JusticeIn asbestos litigation, often times a plaintiff’s sole evidence of product identification takes the form of an affidavit created shortly before the claimant passes away.  Typically called a “dying-declaration” affidavit, the document preserves the plaintiff’s written testimony for trial, thereby preserving his cause of action against the individuals and entities he believes were responsible for causing his illness.

Such affidavits are problematic for defendants for a variety of reasons, principally because the affidavits are frequently created in the short window between a litigant’s diagnosis and his death, which may pre-date the filing of suit.  Under these circumstances, there is patent prejudice inflicted on defendants whose products are identified in the affidavits.  The defendants are denied the right to place the written identification testimony through the crucible of cross-examination, a fundamental right that is generally afforded to defendants in all litigation.

The prejudice inflicted on the decedent-plaintiff, however, is equally patent, if the affidavits are excluded from evidence.  The plaintiff may be the only source of product identification evidence available to his estate, and to deny the admission of a dying declaration affidavit may deny the plaintiff a viable cause of action.

Courts facing the dilemma posed by a dying declaration affidavit recognize the competing rights and interests of the litigants, and often look to the circumstances under which the document was created.  A recent decision in the Rhode Island Superior Court, Pisano v. Alfa Laval, Inc., C.A. No. PC-13-5868 (November 2, 2016) (Gibney, J.), weighed the competing interests with the language of the operative rule of evidence, and came down on the side of the plaintiff, admitting three affidavits executed less than two months prior to the plaintiff’s death, and before he could be deposed, for the purposes of defeating a defendant’s summary judgment motion.

In Pisano, a defendant moved for summary judgment asserting, among other things, insufficient product identification, where the evidence was limited to the plaintiff’s three affidavits.  The plaintiff had been diagnosed with mesothelioma on September 27, 2013, and executed the three affidavits in two separate bunches, one on October 25, 2013, and the other two on November 1, 2013.  The plaintiff passed away on December 16, 2013, one month after suit had been filed, and before he could be deposed by the defendants.  In the first October 25, 2013 affidavit, the plaintiff stated that he cut and installed asbestos-containing flooring tiles with his neighbor in the basement of his home in 1964; he described the tiles as being 10” x 10” and speckled black and white.  In the second affidavit, executed November 1, 2013, the plaintiff reiterated the events in the first affidavit, and further stated that the tiles were in fact 9” x 9”, black and white in color, and of the type he had circled in defendant’s catalog, which was attached as an exhibit to the affidavit.  In the third affidavit, dated November 1, 2013, the plaintiff stated that he installed ceiling tiles in his home sold by the defendant, and again attached
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How to ‘Bell-weather’ a Recall: Position Your Company to Withstand a Recall Efficiently and Effectively

Headlines announcing the recall of some product or another seem to appear as regularly as the changing of the seasons, and often times, to the consumer at large, they come and go just as subtly. It is wholly unsurprising, however, that recalls involving a food item often land with the jolt and turbulence of a spring thunderstorm.

The notion that food, the very purpose of which is to nourish and sustain, could in fact be causing us substantial harm is inherently alarming, and opportunistic news outlets are well aware that food-related recalls increase viewership and website traffic.

Making headlines right now, just as warmer weather is finally reaching much of the country, are two separate wide-ranging recalls involving that American favorite, ice cream. The recalls were initiated by popular producers Blue Bell Creameries, of Texas, and Jeni’s Splendid Ice Creams, of Ohio. The culprit in each recall has been identified as the bacteria Listeria monocytogenes, a potentially lethal contaminant.Jeni's Splendid Ice Creams

Jeni’s Splendid initiated a preemptive voluntary recall of its entire product line on April 23, 2015, while temporarily closing its retail scoop shops, after a random sample collected by the Nebraska Department of Agriculture tested positive for the bacteria. Blue Bell’s path to recall followed a rockier road.

A joint CDC and FDA investigation into an outbreak of 10 reported illnesses resulting in hospitalization, including three fatalities, from January 2010 through January 2015 eventually pointed to Blue Bell ice cream as the likely source. After laboratories in multiple states isolated the Listeria bacteria in several of its products, Blue Bell issued a limited voluntary recall of what it believed were the affected lines in March, 2015. After further investigation resulted in positive test samples in additional product lines, Blue Bell finally moved issued a full recall of all of its products currently on the market on April 20, 2015.

A recall has the potential to create consumer panic towards a product, sometimes an entire brand, and it is almost always a major conundrum for the product seller. The decision to issue a recall of a product that your company has placed on the market involves balancing as many factors as there are flavors of ice cream. The potential impacts are far reaching and substantial, not just to the consumer, but to everyone involved in placing the product in the stream of commerce, from the manufacturer, to the distributor, to the retail seller. What are the risks to the consumer? How many people may potentially be affected? What is the cost of the recall to your company, not just in dollars and cents, but in brand goodwill? How will your employees be impacted? Will you be facing punitive action by a regulatory agency is nothing is done? Will you be exposed to civil or criminal litigation? If a recall is necessary, how broad should it be?

The recalls issued by Jeni’s and Blue
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