Evidence

No Mall Respondeat Superior (NY)

The distinctions between independent contractors and employees can determine liability in many circumstances. Here, we have an appellate decision that found that defendants were not liable for any of plaintiff’s injuries on that distinction. In Athenas v. Simon Prop. Group, LP, plaintiff slipped and fell on floor cleaner in the interior common area of a Long Island mall, in front of a Cohen’s...Read More

Third Circuit Agrees that Business Earnings Prior to an Accident Are Inconclusive (PA)

The United States Court of Appeals for the Third Circuit recently affirmed a decision from the United States District Court for the Western District of Pennsylvania and determined that an insurer’s issues with trial evidence and claims were invalid.  In Kirkpatrick v. GEICO Casualty Company, the insurance company moved for relief from a judgment or, alternatively, for a new trial which was...Read More

Third Circuit Joins First, Second, Fifth and Eleventh Circuits in Holding an Insured Bears the Burden to Show a Loss is Fortuitous (NJ)

Recently, in Chartis Prop. Cas. Co. v. Inganamort, the United States Court of Appeals for the Third Circuit considered whether Joan and John Inganamort (“Inganamort”) met their burden of proof to establish a “fortuitous” loss under an all-risk insurance policy issued to Ingagamort by Chartis Property Casualty Company (“Chartis”). By way of brief background, in September 2011, Iganamort’s...Read More

Clever Defense Strategy Leads to Victory for Motor Vehicle Insurer (NJ)

It is common practice for a defendant in a personal injury action to retain a doctor to conduct an independent medical exam (“IME”) of the plaintiff, with the intention of refuting the findings of the plaintiff’s medical expert.  Often, but not always, the defense report is favorable and the IME doctor will be called by the defense to testify at trial.  In Slomkowski v. New Jersey...Read More

Insurance Investigation Unambiguously Pays for Itself (NY)

MIC General Insurance Corporation (“MIC”) issued an insurance policy to a client which provided liability coverage for the insured’s “residence premise,” which the contract defined as a dwelling where the insured resides. After an accident at a property, the insured sought defense and indemnification from MIC for the subsequent personal injury lawsuit.  However, MIC did not accept their...Read More

Lack of Objective Evidence of Serious Injury Is Key to Dismissal (NY)

In the case of Nicholson v. Kwarteng, the Plaintiff was involved in a motor vehicle accident in August of 2015. According to the Plaintiff, she sustained serious injuries to her cervical spine and left shoulder as a result of the accident. After discovery was complete, the Defendant moved for Summary Judgment, asserting that the Plaintiff did not sustain a serious injury within the meaning of...Read More

School District Fails to Slip Away from Liability for Plaintiff’s Fall (NY)

In Williams v. Island Trees Union Free Sch. Dist., a New York court addresses the level of evidence required for a defendant to claim it lacked constructive notice of a dangerous condition.  In Williams, the plaintiff allegedly slipped and fell on clear liquid in the south cafeteria of Island Trees High School, which was under the control of the Island Trees Union Free School District....Read More

Objections to Verdicts That Are Against the Weight of Evidence Always Preserved for Appeal (NY)

In Evans v. NYCT, the Appellate Division heard an appeal from the plaintiff for a new trial claiming the jury verdict was against the weight of the evidence.  The City opposed the appeal because plaintiff failed to make a post-verdict motion to set aside the verdict and claimed the objection was thereby waived.  The Second Department disagreed.   Plaintiff was allegedly injured when she...Read More

Can it be Hearsay if Nothing is Actually Said?

Hearsay is a part of evidence class in law school, but given all the exceptions, exemptions, and frankly, statements that simply are not hearsay, professors could spend an entire semester examining hearsay alone.  Hearsay is an out of court statement introduced into evidence by a litigant to prove the truth of the matter asserted by the statement’s declarant. What about signage though? Signs...Read More

Settle Out But Remain On The Verdict Sheet (NJ)

In Donna Rowe v. Bell Gossett Company, the New Jersey Supreme Court overturned a controversial Appellate decision that made fundamental changes in substantive and evidential requirements to prove allocation of fault among settled-out defendants at trial. Plaintiff Rowe contracted mesothelioma due to asbestos exposure.  He sued nine different defendants, and all but one settled before trial....Read More