Civil Procedure

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

Painful Verdict for Pain and Suffering (NY)

The Bronx has a reputation for plaintiff-friendly verdicts, and the case of Cabrera v Port Auth. of N.Y. N.J. (2020 NY Slip Op 03993) did not disappoint. Plaintiff, an employee at a Dunkin Donuts franchise at LaGuardia Airport, was involved in an accident with a salt spreading truck in the parking lot during a snowfall. After a jury trial, she was awarded future damages for only a period of...Read More

Dogs Will Be Dogs – Posted Rules at Dog Run Merely a Suggestion? (NJ)

In Freed v. Bastry, the New Jersey Superior Court, Appellate Division, considered whether park guidelines for an off-leash dog area imposed a duty upon dog owners to other park goers in the off-leash dog area. The case arose after Defendants’, Linda and Frank Bastry (the “Bastrys”), over-eager, male golden retriever ran into the plaintiff, Janet Freed (“Freed”), during playtime with Freed’s...Read More

What’s In A Name? The Wrong One Can End a Plaintiff’s Case (PA)

In Fick v. Barbon, plaintiff Terrence Fick (“Fick”) appealed the Superior Court’s decision to grant summary judgment in favor of defendant Barry Barbon (“Barbon”) following a car accident. At issue here is Pennsylvania Rule of Civil Procedure (Pa,R.C.P.) 1033—which explains correcting the name of a defendant after litigation has commenced—and the application of an amendment to the rule. Fick...Read More

A Missed Opportunity by Defense Counsel in PA

In Shiflet v. Lehigh Valley Health Network, Inc., the Pennsylvania Supreme Court affirmed the trial court’s $2,391,620 verdict in favor of the plaintiff under the “general-verdict rule,” which states that “when a jury returns a general verdict involving two or more issues, and the verdict is supported as to at least one issue, the verdict will not be reversed on appeal.” The plaintiff in...Read More

Courts are Reluctant to Dismiss a Case at the Pleadings Stage–Especially on “Negligent Failure to Market” Grounds (PA)

On February 24, 2020, Judge Kim R. Gibson of the United States District Court for the Western District of Pennsylvania denied a defendant truck leasing company’s motion to dismiss the plaintiff’s complaint because she determined that the plaintiff’s allegations gave sufficient notice of strict liability claims, and were not negligent failure to market claims, which are not recognized by...Read More

Beware of Plaintiffs Who “Trip Up” on their Cases (PA)

In Katie Synder v. Ava Hunt et al., the Pennsylvania Superior Court analyzed compulsory nonsuit in a premises liability case.  The basis of the lawsuit is Plaintiff Snyder was walking across the shared driveway of eight defendants on the 6100 blocks of Castor Avenue and 1400 blocks of Benner and Lardner Street in Philadelphia. Plaintiff claimed that she tripped and fell in a hole behind a...Read More

Progressive Facing Class-Action Lawsuit for Stiffing Thousands on Totaled Cars (NJ)

As we’ve recently seen, some courts have seen the wisdom in treating insurance policies as individual contracts.  But that may or may not be the case for Progressive Insurance, which faces a class action lawsuit in New Jersey Federal Court for allegations that it stiffed thousands of customers on fees such as title transfer and registration transfer fees when covering insureds’ claims...Read More

Court Denies Class Certification; Rules Each Insurance Policy Must Be Considered as an Individual Contract

Insurance policies are contracts.  For that reason and others, insurers benefit when courts approach their policies from a contract perspective rather than a public policy perspective.  Related to this point, a Tennessee federal judge recently denied class certification to a group of policyholders who brought suit against North Carolina Mutual Life Insurance Company. The underlying complaint...Read More

Court Liberally Applies Continuous Representation Doctrine (NY)

In New York, an action to recover damages for malpractice, other than medical, dental or podiatric malpractice must be commenced within three years of its accrual. R.M. Kliment & Frances Halsband, Architect v. McKinsey & Co., Inc., 3 N.Y.3d 538 (2004).  The Court of Appeals has recognized that the continuous representation doctrine, a principle that the limitations period for these...Read More