Of Interest

Is Being Free Of Fault Necessary To Be Awarded Summary Judgment On Liability In An Automobile Case? (NY)

Though automobile accidents, large and small, are things we try to avoid at all costs, sometimes they do happen. If there is competing testimony in a case as to how a car accident did happen, summary judgment on liability may be ruled out. Recently, in Golovnya v. Artemchenko, 210 A.D.3d, (2d Dep’t November 30, 2022), a defendant, who was awarded summary judgment on liability by the lower court, had it taken away on appeal for failing to establish, prima facie, entitlement to judgment as a matter of law because she did not demonstrate freedom from fault in the happening of the accident. The Court reasoned that proximate causation could only be decided as a matter of law when only one conclusion could be reached from the facts. Here, the Court considered the deposition testimony of the plaintiff and defendant which illustrated conflicting explanations of the accident. Such conflicting explanations pointed to the possibility of more than one proximate cause of the accident, and it is the task of the trier of fact to determine the issue of proximate cause. It was in light of the “conflicting testimony regarding the manner in which the accident occurred” that the defendant failed to eliminate triable issues of fact. Neither party was awarded summary judgment on the issue of liability. This case is a reminder of the importance of the element of proximate causation, comparative negligence, and factual particularity. Please contact John Diffley for questions about this article.Read More

Health Club Found Not Liable For Infectious Disease Claim (NY)

Generally, a property owner in New York has a duty to maintain the property in a reasonably safe condition. To hold a defendant liable for a breach of this duty, a plaintiff must establish as part of his or her case that the defective condition existed and was a proximate cause of the alleged injury. A defendant may have a plaintiff’s claims dismissed on summary judgment by demonstrating that there was no dangerous or defective condition that could have caused plaintiff’s injury. Many of the cases addressing these issues involving tripping or falling hazards. Where a plaintiff allegedly contracts an infectious disease from visiting a premises, can the property owner be liable for such a condition? In Pecora v. Fitness Intl., LLC, the Appellate Division, Second Department addressed this issue in a case where a health club member filed a personal injury action after developing an infection on his stomach which required hospital treatment. Plaintiff continued to use the health club’s sauna and subsequently developed a bacterial infection, MRSA. He alleged that the use of the defendants’ sauna caused the infection, and that the health club was liable for this condition. The Second Department affirmed the lower court’s award of summary judgment to defendants, finding that the plaintiff would not be able to prove, without speculating, that the MRSA infection came from the facility. The defendants’ evidence had shown that MRSA can be transmitted through common everyday interactions, the facility underwent regular cleaning, and no prior complaints about anyone else contracting MRSA or any other infection at the facility were made. In light of the possibility that the infection could have been caused by other means, the Court found that plaintiff failed to establish that the defendants caused or created a dangerous condition. The Pecora case did not specifically hold that an infectious disease can be considered a dangerous condition but applied traditional premises liability and causation principles to find that the infection plaintiff claimed he developed was not a dangerous condition caused or created by the property owners. The case underscores the importance of causation proofs on this issue. Thank you to Gabriella Scarmato for her contribution to this post. Should you have any questions, please contact Andrew Gibbs.Read More

No Dram Shop Liability for Pennsylvania Employers Serving Alcohol to Intoxicated Employees (PA)

Work-sponsored outings and events are normally seen as a much-welcomed reprieve from the old “9-5”. However, when alcohol is involved, Pennsylvania employers have potential liability to third parties who are injured by suffer at the hands of an intoxicated employee. In Klar v. Dairy Farmers of America Inc., the Superior Court of Pennsylvania addressed the standard which applied to an employer in such a situation. In that case, the Dairy Farmers of America (DFA) held a golf outing for its employees who had to pay a monetary contribution to participate in the outing. An employee became intoxicated and the DFA continued to serve him even though they knew he was an alcoholic and visibly intoxicated. The employee drove home and hit plaintiff who was riding on his motorcycle, causing serious injuries. Plaintiff sued the driver and the DFA, alleging that it was liable for serving the employee when they knew he was an alcoholic and intoxicated. The DFA moved for judgment on the pleadings, arguing that it was a “social host” and not subject to Dram Shop liability because they did not qualify as a “licensee” under PA’s Liquor Code and did not obtain “licensee status.” DFA further argued that there is no liability on the part of a social host who serves alcoholic beverages to their adult guests. The trial court granted DFA’s motion for judgment and Klar appealed, arguing that an unlicensed company-employer who provides an uncontrolled amount of alcohol to a visibly intoxicated employee in exchange for remuneration is liable to injured third parties. The Superior Court disagreed and affirmed, observing that “only licensed persons engaged in the Sale of intoxicants have been held to be civilly liable to injured parties.” The Court further noted that a social host is not liable for serving alcoholic beverages to a guest as “it is the consumption of the alcohol, rather than the furnishing of the alcohol, which is the proximate cause of any subsequent occurrence.” The Court ruled that an employer is a non-licensee under the liquor code and is not subject to standard civil liability because it acted as a social host and was not in the business of furnishing and selling alcohol. The Klar decision makes it clear that Pennsylvania employers cannot be subject to Dram Shop liability for serving alcohol to intoxicated employees. However, the Supreme Court of Pennsylvania has agreed to hear the appeal of the Superior Court’s ruling and a decision is expected this year. WCM will monitor the appeal and provide an update once a decision is announced. Thank you to Haley Matthes for her contribution to this post. Should you have any questions, please contact Andrew Gibbs.Read More

Summary Judgment Denied For Vehicle Struck From Behind Where Proximate Cause Was An Issue (NY)

The general rule in New York for rear-end accidents with a vehicle that is stopped or stopping is that there is a rebuttable presumption of negligence on the part of the driver that hits the vehicle in front of them. Accidents involving multiple vehicles can involve competing testimony and questions of fact that can make summary judgment difficult. For example, in Houslin v. New York City Tr. Auth., plaintiff was a passenger in a vehicle which was struck by another vehicle, then collided with the rear of a bus owned by the MTA and NYC Transit Authority. The Transit defendants moved for summary judgment on the basis that the bus was struck from behind and therefore they had no liability. The Supreme Court denied the motion on the basis that fact issues existed as to the proximate cause of the accident and liability of the Transit defendants. The Appellate Division, Second Department affirmed, finding that the Supreme Court properly denied the Transit defendants’ motion, as “there can be more than one proximate cause of an accident.” The Court found that given the conflicting deposition testimony as to the cause of the accident, issues of fact remained as to whether the bus had been operated negligently, and if so, whether that negligence contributed at all to the accident. The takeaway from the Houslin case is that summary judgment is not guaranteed in a rear-end hit case where there is conflicting deposition testimony and evidence that the driver struck from behind had some degree of negligence in the accident. Thank you to Rebecca Pasternak for her contribution to this post. Should you have any questions, please contact Andrew Gibbs.Read More

Labor Law 240(1) Does Not Apply To Scaffold Accident Where Fall Was Caused by Separate Hazard (NY)

New York Labor Law section 240, the so called “Scaffold Law”, imposes strict liability on property owners and contractors where a construction worker sustains an elevation-related injury. However, section 240 does not apply to all worksite hazards and courts will examine the specific facts to determine if the section will apply. For example, in Krarunzhiy v. 91 Cent. Park W. Owners Corp., the Appellate Division, Second Department addressed the issue of whether a defendant owner violated Labor Law 240(1) when plaintiff fell while working in the defendant’s building. At the time of the accident, plaintiff was working as a mason and painter, and fell over a rug as he descended a temporary staircase from an upper to a lower scaffold. The trial court awarded summary judgment to the defendant. The Second Department affirmed, holding that Section 240(1) did not impose liability under the circumstances. The Court observed that “[T]he extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards and do ‘not encompass any and all perils that may be connected in some tangential way with the effects of gravity.'”  The Court added that the “core objective of the statute in requiring protective devices for those working at heights is to allow them to complete their work safely and prevent them from falling. Where an injury results from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first instance, no section 240(1) liability exists.” Give these principles, the Court held that the owner established that plaintiff’s injury was unrelated to the need for a safety device, and that there was no indication that the scaffold stairs did not allow him to “safely complete his work at a height.” The deficiency with the device “did not interfere with or increase the danger of injury in the performance of his elevation-related task” and therefore plaintiff’s Labor Law 240(1) claim against the owner was dismissed. This decision serves as a reminder that not all elevation-related falls on a construction site will trigger section 240 liability. When defending a Labor Law 240(1) claim, defendants should investigate if a plaintiff’s fall was from a hazard that is unrelated to the plaintiff’s risk. Thank you to Corey Morgenstern for his contribution to this post. Should you have any questions, please contact Andrew Gibbs.Read More

What Is A Passageway Under NY Labor Law?” (NY)

When a plaintiff alleges a Labor Law 241(6) predicated upon a New York City Rules & Regulations code, the plaintiff must establish a prima facie case that the NYCRR is violated. For example, in Stewart v. Brookfield Off. Props. Inc., 2023 NY Slip Op 00226 (2d Dep’t January 18, 2023), the plaintiff allegedly fell at a construction site while installing a lighting fixture. Plaintiff subsequently commenced a lawsuit against the defendant and depositions were conducted. Plaintiff testified at his deposition that he stepped off of a ladder and immediately tripped on a raised portion of the concrete floor. Thereafter, defendants moved for summary judgment arguing that there was no labor law violation because the plaintiff’s injury did not occur on a passageway, which is a predicate to proving a violation. 12 NYCRR 23-1.7(e)(1), which requires owners and general contractors to keep all passageways free of obstructions which could cause tripping, is inapplicable because the site where the plaintiff allegedly tripped was not a passageway. Specifically, the Court stated, “In order to establish liability under Labor Law § 241(6), a plaintiff must “establish the violation of an Industrial Code provision which sets forth specific safety standards,” and which “is applicable under the circumstances of the case.” The lower court held, and the second department recently affirmed, that the defendant’s established the plaintiff’s injury did not occur in a passageway and therefore, there was no NYCRR violation. Accordingly, summary judgment was granted to the defendant. Thanks to Lauren Howard for her contribution to this article.  Should you have any questions, contact Matthew Care.Read More

Supreme Court To Interpret Whether Treble Damages Under UTPCPL Necessarily Constitute A Second Bite At The Apple (PA)

With the turn of the new year in a lawsuit entitled Dwyer v. Ameriprise Financial, et al. No.: 519 WDA 2021, on January 9, 2023, the Pennsylvania Supreme Court has agreed to consider whether a court may triple the damages awarded against a defendant in a consumer protection suit in which the plaintiff already won punitive damages and attorney fees. Dwyer remains a case to watch as Pennsylvania’s highest court determines whether the heightened damages available under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) constitutes an unlawful second bite at the apple. Specifically, Dwyer arises from a universal life insurance policy dispute in which Plaintiffs claim that in issuing their life insurance policy, Ameriprise Financial engaged in deceptive trade practices and made false misrepresentations you Plaintiffs about the terms / scope of their policy. As such, Plaintiffs commenced suit and the case was tried before a jury in the Philadelphia Court of Common Pleas. After establishing claims of negligent misrepresentation, fraudulent misrepresentation, violation of the UTPCPL, breach of fiduciary duty and negligent supervision, the jury returned a judgment subject to attorney’s fees and punitive damages totaling $244,172.57. The Pennsylvania Superior Court upheld the trial court’s denial of remedial treble damages under the UTPCPL, attorney’s fees, totaling $123,175.57, in addition to the jury’s award of punitive damages totaling $75,000. Importantly, the UTPCPL affords the trial court discretion to “award up to three times the actual damages sustained.”  73 P.S. § 201-9.2(a). However, the novel question of just how much discretion a Pennsylvania judge has in awarding UTPCPL tremble damages on top of punitive damages obtained under alternate causes of action will soon be clarified by the Pennsylvania Supreme Court per its January 9, 2023 Order granting Dwyer certiorari. Dwyer remains a Pennsylvania case to watch for defense attorneys and the risk management industry alike. Often, the approach one takes to manage its risk depends significantly on what is at stake. thanks to Kendall Hutchings for her contribution to this article.  Should you have any questions, contact Matthew Care.Read More

Plaintiff’s Lack Of Diligence Merits Dismissal In PA

The Superior Court of Pennsylvania recently issued an opinion in which the court laid out the burden that a plaintiff must satisfy when she files a writ of summons to commence a lawsuit. In Senyk v. Ukrainian Catholic Archeparchy of Philadelphia, 2023 WL 127520 (Pa. Super. Jan. 9, 2023), the plaintiff was injured when she slipped and fell while visiting a cemetery in Philadelphia. She thereafter retained counsel and, four days before the expiration of the two-year statute of limitations, she filed a praecipe for a writ of summons to commence a lawsuit against the church organization that operates the cemetery. The plaintiff, however, made no formal attempt to effectuate service on the defendant church organization. Instead, her counsel communicated directly with a claims specialist employed by the organization’s third-party insurance administrator both before and after the filing of the writ of summons. Importantly, in the days between the filing of the writ and the expiration of the statute of limitations, counsel for the plaintiff exchanged emails with the third-party administrator concerning the plaintiff’s accident but did not mention the filing of the writ of summons. Approximately six months after the writ of summons was file and the statute of limitations expired, the plaintiff filed her complaint. The church organization filed preliminary objections in the nature of a demurrer asserting that the plaintiff failed to comply with the rule set forth in Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), in which the Supreme Court of Pennsylvania held that a writ of summons is effective to commence a lawsuit only if the plaintiff thereafter “refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.” The Superior Court held that the plaintiff did not make a “good-faith effort to effectuate notice of commencement of the action” within the thirty-day window following the writ of summons. The key holding of the case is that generally, in Pennsylvania, communication between a plaintiff and a defendant’s insurance carrier does not qualify as a good faith attempt at service under Lamp. In Pennsylvania, “the plaintiff is always required to undertake diligent efforts to effectuate notice under Lamp.” Where, as in Senyk, the plaintiff does not comply with their obligations to make a good-faith attempt and undertake diligent efforts, the court will grant preliminary objections in the nature of a demurrer in favor of the defendant. Thanks to Jason Laicha for his contribution to this article.  Should you have any questions, contact Matthew Care.Read More

Communications Decency Act Protects TikTok from Wrongful Death Suit (PA)

The Eastern District of Pennsylvania recently held that social media platform TikTok, Inc. and ByteDance, Inc.(a technology company) are immune from a mother’s wrongful death claim under the Communications Decency Act. Tawainna Anderson, the mother of a deceased 10-year-old Nylah Anderson, sued TikTok after her daughter died when she attempted to perform a viral TikTok challenge known as the “Blackout Challenge,” which encourages children to choke themselves until passing out. In her Complaint, Anderson alleged that the challenge was thrust in front of her daughter on her daughter’s TikTok “For You” Page as a result of TikTok’s algorithm. Plaintiff’s mother alleged that while the companies are not liable as publishers, they are as organizations responsible for their own independent conduct as the designers, programmers, manufacturers, sellers, and/or distributors of their dangerously defective social media products and their own independent acts of negligence. Plaintiff argued her claim fell outside of the potential protections afforded by Section 230(c) of the Communications Decency Act. Additionally, Plaintiff brought a strict liability claim against the Defendants for failure to warn. Regardless of Plaintiff’s allegations, the Court held that Congress precluded interactive service providers from being treated as the publisher of third-party content and thus immunized the providers from “decisions relating to the monitoring, screening, and deletion of content.” The Court reiterated that algorithms are not content in themselves and that Defendant simply published content. Thus, TikTok and ByteDance are shielded from liability under Section 230. Thanks to Jean Scanlan for her assistance in this post. Should you have any questions, please contact Tom Bracken.Read More

NJ Bad Faith Claim Dismissed As Mere Denial Of Coverage Is Not Grounds For Bad Faith

The United States District Court for the District of New Jersey recently granted an insurer’s motion to dismiss a bad faith claim where the insurer merely denied coverage and declined to settle with the plaintiff, reiterating that more than a denial of coverage is required to establish bad faith on the part of an insurer.  In Terrance Minor v. Allstate New Jersey Insurance Co., ABC Corp. (1-5) and John Does (1-5), the Court addressed this issue on Allstate’s motion to dismiss.  Minor was involved in an uninsured motor vehicle accident, claiming that Allstate (his vehicle’s insurer) owed him uninsured motorist coverage. Minor alleged that he attempted to resolve his claim with Allstate, but that Allstate refused to settle or go to arbitration. Minor alleged that Allstate breached the covenant of good faith and fair dealing in not settling with him.  In reaching its decision, the Court noted that to establish a breach of the duty of good faith and fair dealing under New Jersey law, a plaintiff must allege that: “(1) the defendant act[ed] in bad faith or with a malicious motive, (2) to deny the plaintiff some benefit of the bargain originally intended by the parties, even if that benefit was not an express provision of the contract.” In the insurance coverage context, the court noted, establishing bad faith “requires a plaintiff to ‘show the absence of a reasonable basis for denying benefits of the policy and the defendant’s knowledge or reckless disregard of the lack of a reasonable basis for denying the claim.’” The Court disagreed with Minor’s argument that Allstate had acted in bad faith because despite numerous discussions regarding resolution between Minor and Allstate, Allstate refused to settle or go to arbitration. In doing so, the Court also rejected the argument that an insurer’s denial of coverage inferentially establishes bad faith. The Court further noted that the complaint itself did not establish bad faith, as it failed to point to specific provisions of the insurance contract or specific dealings between the parties that could potentially allow the Court to infer that Allstate had no reasonable basis to deny coverage. This decision emphatically reiterates the standard on NJ bad faith.  First, it requires a plaintiff to show specificity within the complaint, and that plaintiff avers specific provisions of the insurance contract or specific dealings between the parties rise to the level of bad faith. Second, it demonstrates that an insurer’s refusal to settle or arbitrate a claim, even after numerous discussions with the other parties, is not enough, standing alone, to establish bad faith. Thanks to Erin Gallagher for her assistance in this article.  Should you have any questions, please contact Tom Bracken.Read More