Author: Heather Aquino

Courts Weary Of “Jack Of All Trades” Experts (PA)

Under Daubert, experts must have relevant qualifications to testify to relevant industry standards.

In McConn v Dollar General Corporation., 2022 WL 17750490 (W.D. Pa. Dec. 19, 2022), plaintiff claimed that when she attempted to remove a book from a bookcase in Dollar General, books began falling on her and a rack that holds the book became dislodged. In support of her claims, plaintiff served an expert report identifying a liability expert who opined in his report that Dollar General “deviated from accepted industry wide customs and safety practices in the retail industry.”

Defendant Dollar General contended that the expert was not qualified to testify as an expert in retail safety because he is not an engineer, has no degree in retail safety, and has no practical work experience, i.e. retail store management or retail risk management, which would qualify him to serve as a retail safety expert.

Plaintiff argued that the expert has a Master’s Degree in Advanced Management, a certificate in safety management and a certificate in OSHA Outreach Training. Plaintiff further argued that she is unaware of a specific degree an individual can obtain in “retail safety” but that the expert had conducted field research for “falling merchandise involving produce cases and falling glass bottles due to incorrect stacking.”

The court granted Dollar General’s Daubert Motion, reasoning that while the expert appeared to possess skills, knowledge, and experience in some aspects of safety, the breadth of his skills, knowledge, and experience do not satisfy this Court’s Daubert inquiry.This case stands for the proposition that simply reviewing store manuals cannot create expertise and that “jack-of-all-trade experts” are disfavored.

Thanks to Sarah Polacek for her contribution to this post. Please contact Heather Aquino with any questions.Read More

Video of Bicyclist-Pedestrian Collision Raises Many Questions, Just No Triable Issues of Fact

New York judges continue to disagree on what constitutes a triable issue of fact, even where a bicyclist-pedestrian was caught on video surveillance. In a single-paragraph decision issued on February 9, 2023, the New York Court of Appeals affirmed the First Department’s grant of summary judgment to the defendant bicyclist in Zhong v. Matranga, which reversed the trial court’s denial of that motion. Of the 12 judges to consider the motion (albeit at different stages), eight found that plaintiff pedestrian failed to raise an issue of fact, while four held that she had. All watched the same video.

The First Department’s 3-2 decision – after a lively oral argument in which a divided panel peppered attorneys with questions – thoroughly examined the many dinner-table questions presented by a split-second collision on 91st Street and First Avenue on a busy Friday evening of Memorial Day weekend in 2016.

The majority held that defendant was riding his bicycle through the intersection with the green light in his favor, while plaintiff suddenly walked off the curb and into the bicycle lane against the red light for pedestrians without looking both ways and less than ten feet from the incoming bicyclist. It was undisputed that the bicyclist was riding at approximately 14mph, well below the 25mph speed limit. For those reasons, the First Department held that defendant was not negligent, and plaintiff was the sole proximate cause of the accident. The Court further held that the plaintiff’s expert’s testimony was insufficient to raise an issue of fact as it expressed in a conclusory manner that defendant was riding at an excessive speed when compared to the speed of the three other bicyclists in the video and could have slowed down, stopped, or maneuvered around plaintiff to avoid the collision. The majority pointed to the defense expert who opined that defendant could not have evaded plaintiff to the left or right without putting himself or other pedestrians at risk.

The two-Justice dissent, endorsed by Judge Rivera of the Court of Appeals, stated that, although neither party disputed that the bicyclist had the right of way, plaintiff raised a triable issue of fact through her deposition testimony that she had looked both ways and did not see defendant coming before stepping off the curb, which a jury might find indicative of excessive speed. Despite both experts testifying that defendant was riding at approximately 14mph, the dissent pointed to the video showing that defendant was at least keeping pace with a bus driving in the same direction. Moreover, a jury might find defendant’s riding faster than other bicyclists in the video surveillance probative of what constituted a safe speed under the circumstances. Ultimately, the dissent suggested that the majority was sifting and weighing relevant facts, which should be within the province of the jury.

Thanks to Abed Bhuyan for his contribution to this post. Please contact Heather Aquino with any questions.

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Property Insurers Are Not Responsible For Financial Losses (NY)

Over the three years since the start of the pandemic, business owners have filed over 2,400 lawsuits over business interruption losses resulting from the pandemic and government orders. Both federal and state courts have upheld motions to dismiss these claims.

The Second Circuit in 10012 Holdings, Inc. v. Sentinel Insurance Co. applied New York law to affirm the dismissal of an art gallery’s Covid-19 business interruption claim, holding that “‘direct physical loss’ and ‘physical damage’ … do not extend to mere loss of use of a premise, where there has been no physical damage to such premises; those terms instead require actual physical loss of or damage to the insured’s property.” This decision falls in line with the 10 other circuit courts, having all unanimously said that property insurance does not encompass economic losses from Covid-19-related business interruption claims.

Business interruption insurance typically appears as an add-on to commercial property insurance policies. This coverage is designed to make the insured whole for lost income and additional expenses incurred during a period when business operations are interrupted because of a covered cause of loss. Loss of use of premises when there is no physical damage does not constitute a “direct physical loss” that is covered by the policy’s business income and extra income provisions.

Thanks to Dominika Rybaltowski for her contribution to this post. Please contact Heather Aquino with any questions.

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NY Governor Vetoes Grieving Families Act

Governor Hochul has vetoed the Grieving Families Act bill, just before the January 31, 2023 deadline. If passed, the bill would have expanded the category of persons allowed to recover under wrongful death claims and would have allowed surviving close family members to seek damages for emotional grief or anguish, loss of love, society, protection, comfort, companionship, and consortium, and loss of nurture, guidance, counsel, advice, training, and education- drastically widening damages from economic damages, as they are limited to now.

Supporters of the bill claimed the change would bring the state in line with other states’ damages statutes. Many have criticized New York’s current wrongful death statute as restrictive and archaic, dating back to 1847, as preventing families from suing for damages from their pain and suffering caused by a wrongful death.

However, the bill would have increased the wrongful death statute and likely resulted in a boost of insurance rates and viable claims, burdening New York’s small businesses and overall economy. In an opinion piece in the Daily News, Governor Hochul remarked that the bill was missing a “a serious evaluation of the impact of these massive changes on the economy, small businesses, individuals and the state’s complex health care system.” An actuarial report by Milliman estimated that an overall $2.09 billion or 12.6% increase to annual loss and loss adjustment expenses in New York would have resulted, had the bill passed. Milliman also estimated the law would have resulted in premium hikes of about 39.5% due to a $600 million annual increase in claim costs.

Thanks to Dominika Rybaltowski for her contribution to this post. Please contact Heather Aquino with any questions.

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Courts Should Not Express Opinions as to Workers Compensation Remedies (NY)

In New York, jurisdiction concerning Workers Compensation Law belongs to the Workers Compensation Board. In Lall v. Harnick, plaintiff was injured when she fell at a property owned by defendants. Defendants moved for summary judgment dismissing the complaint, arguing that plaintiff was an employee at the property and therefore the Workers Compensation Law provided the exclusive remedy.

New York Appellate Court reversed the lower court’s decision denying defendant’s summary judgment as premature. The Appellate Court held that where the issue is applicability of the Workers Compensation Law, a court should not express an opinion as to availability of compensation and should refer the matter to the Workers Compensation Board. The Board’s disposition of a plaintiff’s claim is a jurisdictional predicate to filing a civil action.

This reinforces the Workers Compensation Law and will put the burden on plaintiff’s injured in the workplace to first litigate such injuries before the Workers Compensation Board and not the Supreme Court.

Thanks to Jennifer Tuz for her contribution to this post. Please contact Heather Aquino with any questions.

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Time is of the Essence in NY

At the end of 2022, a New York Federal Court granted summary judgement in favor of the Great Northern Insurance Co. (a/k/a Chubb) and found it proper to deny a $1.5 million insurance claim for missing art. Philip Weintraub & Jamelia Weintraub v. Great Northern Insurance Co., 2022 WL 17993903 (S.D.N.Y. Dec. 29, 2022). The insured’s 2019 coverage period with Chubb started from August 18, 2019 to August 18, 2020. The insured discovered the art was missing one week after the 2019 policy coverage began. Since the insured was last in the barn where the art was stored back in October 2018, the loss could have occurred at any moment during that period of time.  

The insured’s loss was not covered under the 2019 policy because the insured, under New York law, did not meet the burden to prove that the loss occurred within the coverage period of 2019. The insured’s loss was not covered under the 2018 policy either, even though the insured has maintained continuous coverage with Chubb since the 1990s. The insured failed to submit any notice of loss “as soon as possible” as required by the 2018 policy. Indeed, the insured did not file the lawsuit until more than two years after the loss. Interestingly, the court noted that the language that requires notice of loss “as soon as possible” was only explicitly included in the 2018 policy, not 2019 policy. If such language was not included in the policy delivered to the insured or readily available to the insured online, then such term has no binding effect.  

Thanks to Sherry Lin for her contribution to this post. Please contact Heather Aquino with any questions

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Failure To Facilitate A Meeting Of The Minds On A Pretrial Agreement Is Perilous

In Jones v. Blue Ridge Mfg., LLC, 4D21-1799 (Fla. 4th DCA Dec. 14, 2022), the parties stipulated that the death was the result of decedent’s head’s “direct or indirect contact” with defendant’s vehicle. There was evidence that decedent suffered a basal skull fracture caused by decedent’s head’s “direct or indirect contact” with defendant’s truck. There was also evidence that the basal skull fracture was the result of inertial forces (the fatal injury believed to have been suffered by race car driver Dale Earnhardt) not caused by decedent’s head’s “direct or indirect contact” with defendant’s truck.

The defendant sought to withdraw the stipulation pretrial, arguing that the meaning of “direct or indirect contact” was not clear. The court declined to do so but did allow the defendant to argue its interpretation of the stipulation and put on evidence supporting that interpretation.

On appeal, the court discussed the purpose of, legal analysis applied to, pretrial stipulations. The court recognized that stipulations were valuable to a “well-run and fair trial,” warned that “the failure to facilitate a meeting of the minds on a pretrial agreement is perilous,” and cautioned that “stipulations be clear, positive, definitive, and unambiguous.”

Because it could “fairly be read to mean that the parties intended the ‘direct or indirect’ contact issues to be determined by the jury,” the appellate court found the stipulation ambiguous. Applying this finding, the Court held that the trial court did not abuse its discretion in allowing the jury to determine the meaning of the stipulation or in allowing extrinsic evidence regarding the meaning of the stipulation.

The takeaway: Be aware of the nuances presented by the evidence, and do not let your familiarity with the evidence result in a less than clear stipulation.

Thanks to Charles “Chip” George for this article. Please contact Chip with any questions.

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Plaintiff’s Comparative Negligence Not Admissible In A Strict Liability Action (PA)

In Cote v. Schnell Industries, 2022 WL 16814032 (M.D. Pa. Nov. 8. 2022), Cote was injured while working at a transfer yard moving sand used in “fracking” operations from railcars to tractor-trailers for delivery to fracking customers. When Cote reached his hand into a piece of equipment to dislodge the wet sand so the sand could be properly transported onto the conveyor belt, his co-worker simultaneously activated the machine’s “power take off” lever, which slammed a gate shut and nearly severed Cote’s hand.

The defendant equipment manufacturer argued that Cote acted negligently because “he knew of the danger posed by putting his hand through the [gate] while the machine was energized.” Defendant’s theory related directly to the alleged product. Cote argued that the equipment was defective because “it cannot isolate, deenergize and lockout its [power take off lever] so that workers can safely unload jammed sand . . . without risk of the door closing.”

The court granted Cote’s motion in limine, holding that defendant was precluded from arguing that Cote’s negligence caused the accident. The Court reasoned that because Cote’s alleged negligence “cannot be causally distinguished from the elements of the [equipment] Cote considers defective, [defendant] is unable to show ‘that none of the alleged product defects contributed in any way to the accident.’”

This case stands for the proposition that a plaintiff’s conduct in a products liability case is relevant only if the conduct was the sole cause of the accident and unrelated to the alleged defect.

Thanks to Sarah Polacek for her contribution to this post. Please contact Heather Aquino with any questions.

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Step Risers Into Showers Are Not Open And Obvious (NY)

New York Courts recently held that a step riser in a shower stall in a gym locker room is not obvious and not dangerous. In Lore v. Fitness International LLC , plaintiff tripped and fell on a tiled single-step riser while entering a shower stall in the locker room at defendant’s gym. The single-step riser was approximately 4.5 inches high but was tiled in the same color and pattern as the floor tiles. In New York, the possessor has a duty to maintain the property in a reasonably safe condition. However, there is no duty to protect against an open and obvious condition that is not inherently dangerous. The Supreme Court granted the defendant gym’s motion for summary judgment on the grounds that the single-step riser was open and obvious and not inherently dangerous. On appeal, the Second Department reversed and concluded that defendant gym did not establish that the step riser was not inherently dangerous under the surrounding circumstances, including the lighting conditions at the time of the accident. This decision will raise the bar on summary judgment when arguing open and obvious conditions. Circumstances surrounding the condition will need to be addressed in summary judgment arguments. Thanks to Jennifer Tuz for her contribution to this post. Please contact Heather Aquino with any questions.Read More

Plaintiff Failed To State A Claim For Alleged Workplace Assault (NY)

Plaintiff, a staff accountant, complained to her employer of workplace safety violations following an alleged physical assault by a co-worker. Defendant employer terminated plaintiff shortly after her allegation, and plaintiff filed suit, through counsel, alleging that defendant employer terminated her in retaliation for her workplace safety complaints in violation of Labor Law §§ 215 and 740. Defendant moved to dismiss the complaint for failure to state a cause of action. The Supreme Court dismissed the complaint.

The First Department in Sakthivel v. Industrious Staffing Company, LLC, 2021-01142, affirmed the lower court’s dismissal of the complaint on two grounds. First, although plaintiff, proceeding pro se on appeal, premised her Labor Law claim on an alleged violation of workplace safety, Labor Law § 200 codifies the common-law duty upon an owner or general contractor to provide a safe worksite for construction workers. Staff accountants like plaintiff are not among the class of workers protected by the Labor Law. Thus, plaintiff could not rely on Labor Law § 200 for her § 215 claim.

Next, the First Department affirmed a previous decision that the alleged co-worker assault did not raise a claim under § 740 as it did not constitute “an activity, policy, or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety.”

Thanks to Abed Bhuyan for this post. Please contact Abed with any questions.

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