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News Defendants’ Conflicting Accounts Held Fatal To Their Summary Judgment Motion (NY) December 2, 2022 < Back Share to: When moving for summary judgment in a New York negligence action, the moving defendant has the burden of establishing, prima facie, that he or she was not at fault in the happening of accident. Evidence of fault on the part of the defendant can defeat the motion and can come from the defendant’s own proofs. For example, in Charles v. American Dream Coaches, a vehicle operated by plaintiff collided with a bus owned by one of the defendants. Plaintiff pleaded guilty to the traffic offense of driving or operating a motor vehicle in an unsafe manner but still sued the bus owner and driver. The Supreme Court granted defendants motion for summary judgment and plaintiff appealed. The Appellate Division, Second Department reversed, citing the general rule regarding a defendant’s summary judgment burden and finding that defendants had “failed to establish, prima facie, that they were free from fault in the happening of the accident.” In so holding, the court observed that the defendants had submitted conflicting accounts of how the accident happened and failed to eliminate triable issues of fact as to their fault. The Court also held that the fact that the plaintiff pleaded guilty to a traffic offense did not conclusively establish that she was negligent and that a person who pleads guilty to a traffic offense is permitted to explain the reasons for the plea to a jury. The Charles case serves as a reminder that summary judgment is not appropriate where evidence of a defendant’s fault exists, and that care should be taken to avoid submitting conflicting evidence in connection with such a motion. Thank you to Rebecca Pasternak for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Insurance Adjuster's Estimate Supports Damage Award Against Contractor (NJ) December 12, 2013 < Back Share to: We frequently see articles and cases about conflicts between insurers and homeowners due to storm damage. But recently, the alignment between the insurer and policyholder lead to a damage award against a contractor. In Peltier v. Barbera, plaintiff had the defendant construction contractor provide an estimate for necessary storm repairs for her home. Defendant suggested that plaintiff file a claim with her homeowner's insurance carrier, which plaintiff did, and the carrier provided a detailed breakdown of damages and costs of repair as determined by an adjuster retained by the carrier. The contract between the plaintiff and the defendant specifically and expressly relied upon the cost breakdown provided by the carrier. Despite receiving full payment, the defendant only completed part of the work, leading to a lawsuit by the homeowner. During the lower court bench trial, the judge found that the defendant had indeed breached the contract with the plaintiff by failing to complete the agreed upon work. However, the judge also determined that the plaintiff failed to prove damages, primarily because she relied exclusively upon the estimate prepared by the insurance company and its adjuster, rather than expert testimony to substantiate her claim for damages. Relying on long-standing principles of fairness and equity, the Appellate Division determined that where a breach of contract and subsequent damage occurred with certainty (as was the case here), uncertainty about the amount of damages should not serve as a bar to making a party whole. Finding that the insurance estimate and cost breakdown was sufficient evidence to establish the scope and cost of the necessary work, the appellate court reversed the lower court decision and directed entry of an award of damages against the contractor for the cost of work he failed to perform. Thanks to Emily Kidder for her contribution to this post. If you would like more information please write to Mike Bono. Previous Next Contact

News Lights Out On Lamp, Court Sheds Light On Service Of Process (PA) April 8, 2021 < Back Share to: In recent case, Gussom v. Teagle, the Pennsylvania Supreme Court revisited the issue whether a lawsuit should be dismissed due to Plaintiff’s lack of effort to complete service – regardless of Plaintiff’s intent. On July 25, 2016, Rasheena Gussom and Maurice Teagle were involved in a car accident. Two months before the statute of limitations expired, Gussom filed a civil complaint against Teagle. Gussom attempted to serve Teagle in Philadelphia and then again in Virginia. After the statute of limitations had expired, Gussom filed a praecipe to reinstate the complaint and unsuccessfully attempted to serve Teagle via certified mail. A few months later, Teagle filed preliminary objections to Gussom’s complaint which argued no good faith effort was made to serve him before the statute of limitations expired. The trial court sustained Teagle’s preliminary objections and dismissed Gussom’s complaint with prejudice. The Pennsylvania Superior Court affirmed the dismissal of a civil complaint citing Plaintiff failed to make a good faith effort to timely serve the Defendant. On appeal, the Pennsylvania Supreme Court affirmed the rulings of the Superior Court and trial court, therefore dismissing the Plaintiff’s complaint with prejudice. In its analysis, the Supreme Court revisited the Lamp Rule which originated from Lamp v. Heyman. The Lamp Rule prohibited plaintiffs filing a writ of summons prior to the expiration of the statute of limitation and then making no effort to service the defendant. However, over time the Lamp Rule has been interpreted to dismiss only claims in which plaintiffs have shown intent to stall the judicial process. The new standard set out in Gussom is that a plaintiff must make a good faith effort to serve process upon a defendant. The plaintiff has the burden of proving they diligently attempted timely service on the defendant, regardless of whether the plaintiff’s actions were intentional. The Gussom Court held the trial court now has full discretion to dismiss a complaint when plaintiff fails to offer proof of attempted service in a timely manner and there is no evidence that Defendant had actual notice. The trial court need not take into account the intent of the Plaintiff nor the prejudice on the defendant when deciding to dismiss a complaint. Of major import, this case places a higher burden on Plaintiff to show diligent efforts of service, especially after the statute of limitations has expired. Additionally, this case aids Defendants in filing preliminary objections, as prejudice is not a factor in the Gussom decision. Thanks to Madeline Troutman for her contribution to this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News 33 Seconds Is Not Sufficient Notice For NJ App. Div. January 19, 2011 < Back Share to: In Capano v. Moral Foods , Inc, the Appellate Division affirmed the summary judgment dismissal of plaintiff's personal injury complaint for a slip and fall accident in defendant's supermarket. Plaintiff slipped and fell in defendant's store while shopping. A store surveillance video confirmed that a male customer dropped a container of cottage cheese on the floor at 3:02:40 and that plaintiff fell at 3:03:15, 33 seconds later. Plainitff argued that the store was small and the spill was in the front of the store , therefore that a fact question existed as to whether a store employee should have observed the spill. The Appellate Division affirmed summary judgment finding that 33 seconds was not sufficient notice and that plaintiff's fall was " relatively instantaneous" providing no time for the store to react. The Court also found that the facts did not establish a " dangerous mode of operation " case which would have eliminated the requirement of proving notice. The Court found the dangerous condition caused by spillage from a packaged container of cottage cheese was not a foreseeable risk posed by the store's mode of operation. Please contact Robert Ball with any questions regarding this post. http://www.judiciary.state.nj.us/opinions/a3218-09.pdf Previous Next Contact

News How Far Is Too Far in Summation? November 5, 2010 < Back Share to: Every jurisdiction has its own set of rules as to how far an attorney can go in a personal injury case in arguing the pain and suffering value of the injuries. New York, for example, allows an attorney to suggest specific numbers to a jury. Pennsylvania, in contrast, does not. In New Jersey, court rule R. 1:7-1 specifically prohibits counsel from arguing a specific pain and suffering value. But, as you might expect, attorneys, particularly plaintiff’s attorneys, often try to take liberties with the rule. So it is that the case of Riski v. Thompson Muller, is headed to the New Jersey Supreme Court -- http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202474023552&slreturn=1&hbxlogin=1. In Riski, plaintiff’s counsel told the jury that they would be “ignoring the law if they had an issue with a million dollar case.” After this argument, a $1,700,000 verdict was awarded -- a verdict that was set aside by the trial court -- and an appeal resulted. The Supreme Court will now decide whether the arguments violated R. 1:7-1 and otherwise went beyond the bounds of proper advocacy. We will keep you posted as to what happens next! If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News I Wasn’t Aware; Isn’t Enough (PA) August 8, 2019 < Back Share to: In Peters v. Wellsboro, the Pennsylvania Superior Court recently ruled on whether a plaintiff carried her burden establishing that a landowner breached its duty of care. Specifically, one evening, Helen Peters was dining at the Penn-Wells Hotel in Wellsboro, Pennsylvania, with her husband. As they left the hotel/restaurant, Peters slipped and sustained injuries. She claimed that she fell on a step that was unsafe, insufficiently lit, and generally posed a hazard to anyone exiting the restaurant. Peters and her husband filed suit against the hotel, claiming, primarily, negligence. During discovery, Peters was deposed and testified that she missed the allegedly dangerous step because she did not realize it was there and its presence needed to be more pronounced. At the close of discovery, the defendants moved for summary judgment, arguing that Peters and her husband failed to show any breach on their part caused Peters to fall. The trial court granted the motion, dismissing the case. Peters appealed. In any claim for negligence under Pennsylvania law, the claimant must show that the defendant owed a legal duty and that the duty was breached, causing harm to the claimant. A business invitee, like a restaurant or hotel patron, such as Peters, is owed the highest level of care. Accordingly, the landowner has an affirmative duty to protect the invitee from all known dangers, as well as those dangers that could be discovered with reasonable care on the landowner’s part. Applying this standard, the Superior Court, ultimately, agreed with the trial court’s ruling reasoning the only evidence Peters had produced to establish a breach of that duty was her testimony that she was unaware of the step. According to the Court, this was insufficient to establish that the hotel breached its duty to Peters, and, thus, the Court affirmed the trial court’s decision. Accordingly, this case illustrates that a plaintiff-invitee’s lack of awareness of an allegedly dangerous condition, alone, will likely be insufficient to prove that a landowner breached its duty of care to the invitee. Thanks to Robert Turchick for his contribution to this post. Please email Colleen E. Hayes with any questions Previous Next Contact

News Should Attorneys Cross Examine Their Own Clients At Deposition? (NY) October 8, 2021 < Back Share to: While probably not a tool used, even considered, nearly enough, a lawyer questioning his or her client during a deposition can be a great way to clarify facts and set things up for anticipated motion practice. The words from the 1973 song Ooh La La by Faces seem appropriate, “I wish that I knew what I know now…” when my client was deposed. Rule 3113 of the CPLR frames the complete context of a deposition. At section (c) thereof, it reads that a “deponent may be cross-examined by his or her own attorney” when that party is deposed “at the instance of an adverse party.” See CPLR 3113(c). The rule goes on to further read that this cross-examination of a lawyer’s own client “need not be limited to the subject matter of the examination in chief.” Id. New York courts, in looking at this section of CPLR, have pointed out that a deponent’s lawyer is accorded a broader scope of inquiry during such circumstances and the questions are not limited to the subject matter of the examination in chief. See Orner v. Mount Sinai Hosp., 305 A.D.2d 307, 761 N.Y.S.2d 603 (1st Dep’t 2003). This scope is so broad, that in defending the deposition, virtually all objections should be withheld save those as to form. In fact, under Part 221 of the Uniform Rules for the Trial Courts, “Uniform Rules for the Conduct of Depositions,” objections at a deposition essentially ought to relate to the form objection. See 22 NYCRR § 221.1(a). So, if a client did not get the facts across as clearly or advantageously as possible, attorneys should consider cross examining their own clients pursuant to CPLR 3113(c) to mitigate any negative impact and buttress the case. Please e-mail John Diffley with any questions. Previous Next Contact

News 3rd Circuit Imposes Major Change in PA Product Liability Law. April 21, 2009 < Back Share to: In product liabity cases, PA has followed the Restatement 2nd of Torts. Under the Restatement 2nd, only "intended users" and not bystanders can maintain a product liabilty claim. The 3rd Circuit has now just overturned that understanding. In the case of Berrier v. Simplicty, et al., the 3rd Circuit has just ruled that it believes that the Pennsylvania Supreme Court is likely to soon adopt the Restatement 3rd of Torts. Under the Restatement 3rd, a bystander can maintain a product liability claim. This represents a major change in PA law. http://www.ca3.uscourts.gov/opinarch/053621p.pdf Previous Next Contact

News PA Court: Jurors Know Bad Faith When They See It June 28, 2013 < Back Share to: For the second time in less than a year, a federal court judge in Pennsylvania has precluded expert testimony on the issue of whether an insurance company is guilty of bad faith. In Schifino v. Geico General Insurance, Judge Terrance McVerry of the Western District granted motions in limine to preclude the testimony of insurance claim experts on the issue of bad faith. Judge McVerry ruled that “a reasonable juror certainly possess the requisite knowledge to assess the bad faith allegation, which is equally neither complex nor scientific.” Given that, he decided that an expert was not required and, in fact, allowing an expert to testify regarding bad faith would “usurp the jury’s fact-finding function”. Judge McVerry relied on reasoning from a prior Western District case, Smith v. Allstate Insurance from November, 2012. In Smith, Judge Kim R. Gibson also barred testimony of a bad-faith expert. Judge Gibson ruled that bad faith is a general legal concept, not requiring specialized, scientific or technical knowledge. In fact, Judge McVerry in Geico cited language from Smith in his decision. We expect that these rulings are likely to have strong precedential influence on Pennsylvania state courts in the coming future. Thanks to Remy Cahn for her contribution to this post. If you would like more information please write to Mike Bono. Previous Next Contact

News Failure To Facilitate A Meeting Of The Minds On A Pretrial Agreement Is Perilous February 3, 2023 < Back Share to: 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. Previous Next Contact

News Can A New York Property Owner Be Liable For A Plaintiff’s Unforeseen Conduct? December 3, 2021 < Back Share to: In Morales v. Mid Bronx Senior Citizens Council, Inc., a New York trial court recently addressed whether commercial property owners were liable for an accident caused by a plaintiff’s unforeseen conduct. Plaintiff in that case alleged that after the conclusion of his employment training at a senior citizen’s home, he attempted to leave the property, but the gate was locked. He then attempted to reenter the building, but that door was locked as well. When plaintiff could not get anyone to answer the door, he tried to leave the property by climbing a 15-foot wall and was injured when he jumped down. The defendants moved for summary judgment in the resulting personal injury lawsuit, arguing that no dangerous condition existed, plaintiff’s actions were the proximate cause of his injures, and that they could not have foreseen such conduct. The court agreed and found that “a reasonable person in plaintiff's situation would not have climbed over an extremely high wall, instead they would have called for help or waited for assistance.” The court held that plaintiff's reckless conduct caused his injury and not the locked gate, which is “not a dangerous condition in and of itself.” The court added that the decision to climb over the wall and jump down “could not have been a natural and foreseeable consequence” of leaving the gate locked. Accordingly, the court found that the locked gate was not the proximate cause of the plaintiff's injuries and summary judgment was appropriate under the circumstances. The Morales decision serves as a reminder that property owners in New York are not subject to liability for injuries or conduct that they could not reasonably foresee. Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions Previous Next Contact

News Nothing Says Summer Fun Like Disputes Over Skiing Waivers. June 29, 2010 < Back Share to: In 2008, we reported that the issue of ski waivers was soon to be taken up by Pennsylvania's highest court in the case of Chepkevich v. Hidden Valley Resort –-- http://www.wcmlaw.com/showarticle.asp?Show=115. The issue was important because the appellate courts had split on the issue of whether the waivers were enforceable. Now, some two years later, in the midst of an early summer heat wave, that long anticipated decision has finally come down. The Pennsylvania Supreme Court has just ruled that recreational skiing liability waivers are enforceable as a matter of Pennsylvania law. If the snows this year match last year's records, this is certainly good news for Pennsylvania's mountain resorts. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://pdf.wcmlaw.com/pdf/Ski Waiver.pdf http://pdf.wcmlaw.com/pdf/Ski Maj.pdf http://pdf.wcmlaw.com/pdf/Ski Co.pdf http://pdf.wcmlaw.com/pdf/Ski Co2.pdf Previous Next Contact