Wade Clark Mulcahy LLP

News NJ Appellate Court Reinstates $1 Million Award for Herniations December 16, 2009 < Back Share to: Plaintiff Ming Yu He was involved in an auto accident, and filed suit against the owner and operator of the other car in He v. Miller. An MRI of plaintiff revealed four herniated or ruptured discs, which caused ongoing pain. Plaintiff underwent the typical battery of physical therapy, including acupuncture. No surgery was performed, although epidural injections were administered. Plaintiff’s physician testified she had “chronic and permanent pain” five years after the accident. Plaintiff testified she was unable to perform typical household duties and the like. The defendants’ IME physician opined much of plaintiff’s condition was likely degenerative and preexisting. But a Morris County jury returned an award that included $1 million for pain and suffering. The trial judge found the award was “shocking to the conscience,” but did not mention similar verdicts in granting remittitur. The Supreme Court ultimately reversed and remanded to have the trial court explain how the award differed from other comparable awards. The trial court subsequently cited to two decisions relating to cases over which he presided, but those cases involved different injuries than those suffered by plaintiff He. The Appellate Division found that the trial court’s discussion of comparable verdicts was insufficient and that they only provided “superficial support” for the remittitur. The appellate court also expressly rejected the judge’s “feel of the case,” emphasizing that the trial judge is not a “thirteenth and decisive juror.” Notably, the appellate court also stated that the judge was correct in finding the likely range of verdicts for similar injuries was between $40,000 and $200,000, but that in order to set aside the verdict it must be “adequately articulated” that permitting the award to stand would constitute a manifest miscarriage of justice. The verdict was reinstated. http://pdfserver.amlaw.com/nj/He-a5685-07-remanded.pdf Previous Next Contact

News "Arising Out of Bodily Injury Sustained By An Employee Of Any Insured" Examined in NY. July 23, 2010 < Back Share to: In the case of Baker v. Safety Casualty, American Safety insured Point Recycling. Point Recycling was a tenant in a building owned by Baker. Robert Ruiz, a Point employee, was injured working in Baker's building. He sued Baker. Baker tendered to Safety as it was a named additional insured under that policy. Safety disclaimed based upon an exclusion that barred from coverage all claims "arising out of bodily injury sustained by an employee of any insured." The trial court rejected that argument, but the 2nd Dept. reversed and found for the insurer based upon the exclusion. Please contact Bob Cosgrove at rcosgrove@wcmlaw.com for any questions about this post. http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9702877 Previous Next Contact

News Soft Tissue Injuries Lead To Significant Verdict October 28, 2022 < Back Share to: On October 20, 2022, a federal jury in the United States District Court for the Eastern District of Pennsylvania awarded plaintiff, Kerry Ponder (“Plaintiff”) $1,800.000 for personal soft tissue, sprain / strain injuries arising from a motor vehicle collision where Plaintiff was driving on behalf of his employer. Though the at-fault driver had insurance coverage of up to $50,000, this did not cover the extend of damages claimed which included a $231,667 worker’s compensation lien and past / present work loss reflecting his annual salary of $50,000 prior to the accident. As such, Plaintiff initiated the instant lawsuit against Charter Oak Fire Insurance Company (“Charter Oak”) entitled Ponder v. Charter Oak Fire Insurance Company, No. 20-5037; 50:20-cv-05037 (2020), seeking UIM benefits from his employer’s $1,000,000 insurance policy to make up the difference. At trial, liability, overall, was not at issue, rather damages were disputed. After a two-day jury trial and subsequent two-hour deliberation, the million-dollar verdict was issued in favor of Plaintiff. Judge Jeffery Schmehl then molded the verdict to $958,000.000, reflecting the $50,000 third-party settlement, before the final judgment was issued. We suspect the issue of damages is likely to be disputed on appeal by Charter Oak. Ponder acts as a reminder to risk management and defense professionals alike that soft tissue injuries which may initially seem nominal can, in fact, lead to a six-figure payout where damages are supported. Moreover, it remains difficult to ever fully predict the results of a jury trial. Thanks to Kendal Hutchings for her contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News NJ Bad Faith Claim Dismissed As Mere Denial Of Coverage Is Not Grounds For Bad Faith January 13, 2023 < Back Share to: 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. Previous Next Contact

News Duty of Care as to Open and Obvious Dangers is not always Open and Obvious August 16, 2024 < Back Share to: In Robinson v. Seven Springs Mountain Resort, Inc. , Plaintiff Robinson was a business invitee at Seven Springs, playing a round of disc golf when she slipped on a steep slope consisting of loose gravel, and fractured her ankle. Seven Springs field a Motion for Summary Judgment arguing that Robinson “failed to present prima facie evidence that Seven Springs owed a duty of care to her because the condition of the hillside was obvious.” See 2024 WL 2955263, at 1 (Pa. Super. Ct. June 12, 2024). The trial court granted Seven Springs' Motion for Summary Judgment, stating “the natural condition was known and obvious” since Ms. Robinson knew “she was traversing a steep slope with patches of rocky and loose dirt.” Id. at 3. On appeal, the court reversed Seven Springs' Motion for Summary Judgment, holding that there was a question of material fact as to whether the hazard was open and obvious. The Court explained that, based on the Restatement (Second) of Torts § 343A, “Seven Springs is not relieved of its duty of care for open and obvious dangers when it has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.” Id. at 5. The Court explained that Robinson’s testimony about the condition of the loose rocks was not “unquestionably obvious.” Id. at 4. Lastly, the Court reasoned that Seven Springs could anticipate that “any invitee's attention may be distracted while playing disc golf and attempting to retrieve discs mid-play.” Id. at *5. Robinson v. Seven Springs Mountain Resort Inc. .pdf Download PDF • 174KB Previous Next Sarah Polacek Sarah Polacek Senior Associate +1 267 239 5526 spolacek@wcmlaw.com Contact

News Mode-Of-Operation Doctrine Rejected For Accident Not Involving A Self-Service Setting (NJ) June 16, 2023 < Back Share to: In New Jersey premises liability cases, plaintiffs are generally required to prove that a dangerous condition existed, and that the owner had actual or constructive knowledge of the condition. There are certain exceptions to this burden of proof including the “mode-of-operation” doctrine which creates a rebuttable presumption of negligence where an owner’s mode of business operation creates a dangerous condition. The doctrine creates an inference of negligence which excuses a plaintiff from having to prove notice, shifting the burden to the defendant to show it exercised due care. In Miguez v. Shoprite of Kearny, the New Jersey Appellate Division addressed the doctrine in a case where the plaintiff was allegedly injured when she slipped and fell on a metal vent which had fallen off a self-service refrigerator in the deli aisle at a supermarket. Consequently, plaintiff initiated a lawsuit against the defendant to recover damages. Plaintiff’s engineering expert opined that the refrigerator had not been cleaned or serviced in years and store surveillance video showed the vent cover fell after an employee placed items inside. Defendant moved for summary judgement on the ground plaintiff had failed to establish actual or constructive notice of the condition. Plaintiff argued she did not have to do so because the mode-of-operation doctrine applied or that defendant created the condition that caused her fall. The trial court granted defendant’s motion, holding that plaintiff was required to prove actual and/or constructive notice and failed to do so. The Appellate Division affirmed in part and reversed in part, first holding that the trial court was correct in refusing to apply the mode-of-operation doctrine. In so holding, the Court recognized that the New Jersey Supreme Court has limited the doctrine to the self-service setting where customers are independently handling merchandise and equipment without the assistance of employees. The Appellate Division found that plaintiff failed to demonstrate the necessary nexus between a defendant's self-service operations and her fall. However, the Court also found that the award of summary judgment was inappropriate where the evidence provided by plaintiff established the existence of genuine issue of material fact as to whether defendant had actual or constructive notice of the dangerous condition, or whether defendant caused this condition through its own inaction. The takeaway from the Miguez decision is that plaintiffs should only attempt to assert the mode-of-operation doctrine as a way to shift their burden of proof in premises liability cases in limited situations involving a retailer’s self-service operations. The case also demonstrates that summary judgment as to the issue of notice may be a challenge where there is evidence creating issues of fact. Thank you to Jordan Davis for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Court of Appeals Cleans Up Labor Law Claims (NY) October 17, 2013 < Back Share to: Labor Law § 240(1) was designed to protect construction workers from unsafe conditions, but plaintiffs' attorneys often try to have as many claims as possible fall under the strict liability statute. Under Section 240(1), an owner or general contractor faces strict liability when an employee falls from a height while involved “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” A source of controversy has been the "cleaning" category, as Labor Law claims have been made, for example, by an office cleaning person who falls from a desk while dusting. The Court of Appeals recently recognized that the Labor Law is intended to have a limited scope, and provided a four-factor test under which courts can evaluate whether an activity actually constitutes “cleaning” within the meaning of the Labor Law in Jose A. Soto v. J. Crew, Inc., et. al. Plaintiff Jose Soto was an employee of a commercial cleaning company that was hired by the clothing store J. Crew to provide janitorial services. Soto was dusting a six-foot high display shelf in the store when he fell from a four-foot tall ladder. Soto brought an action against J. Crew and the owner of the building under Labor Law § 240(1). The trial court granted the defendants’ motion for summary judgment, ruling that Labor Law § 240(1) does not apply to “routine maintenance,” such as the dusting of a book shelf. The Appellate Division, First Department affirmed the trial court’s decision. The Court of Appeals began its decision by setting out the current legal landscape in respect of whether particular conduct qualifies as “cleaning” under the Labor Law. The Court discussed its 2012 decision in Dahar v. Holland Ladder & Manufacturing Company (which we examined in a prior post), in which a plaintiff was injured when the ladder he was standing on broke while he was cleaning a seven-foot high wall in a factory. The Court in Dahar ruled that the statue did not extend so far as to protect an injury sustained while cleaning a product in the course of a manufacturing process. The Court then set out a four-factor test for courts to apply when evaluating whether an activity can properly be characterized as “cleaning” under the Labor Law. The test examines whether a particular task: 1) is routine; 2) requires specialized equipment or expertise; 3) involves elevation risks comparable to typical household maintenance; and 4) aligns with the “core purpose” of the Labor Law which is to protect workers on a construction site. Applying these factors, the Court found that Soto’s “cleaning” did not fall within the ambit of Labor Law § 240(1), as “[t]he dusting of a six-foot-high display shelf is the type of routine maintenance that occurs frequently in a retail store.” The Court also noted that the elevation-related risks were comparable to that of a homeowner who is performing home maintenance. Thanks to Steve Kaye for his contribution to this post. If you would like more information please write to Mike Bono. Previous Next Contact

News Conclusory Expert's Opinion Insufficient To Stave Off Summary Judgment In Escalator Case January 25, 2008 < Back Share to: In Parris v. Port of New York Authority and Otis Elevator, 2008 NY Slip Op 00197, AD and New York Co. Index 121678/03, plaintiff claims to have suffered injuries when the escalator at the Port Authority Bus Terminal he was riding suddenly "jerked" and "pulled" causing him to fall backwards and hit his head. Defendants moved for summary judgment arguing that even if a mechanical defect existed, there were no records of prior complaints and service maintenance records equally reflected no problems. Plaintiff opposed this motion by submitting an affidavit of an expert engineer. This expert, who never conducted an on-scene inspection, averred that plaintiff's accident could have been due to warn parts. While the trial court denied summary judgment, finding a question of fact was raised by this expert, the Appellate Division - First Department disagreed, finding the expert's findings to be factually unsupported and too speculative. On an awkward note, the trial judge, Justice Rolando T. Acosta, was recently promoted to the Appellate Divison - First Department and now sits with the very judges that reversed him. http://www.nycourts.gov/reporter/3dseries/2008/2008_00197.htm Previous Next Contact

News If You Climb In The Saddle, Be Ready For The Ride – And The Fall (NY) July 11, 2013 < Back Share to: In Fenty v. Seven Meadows Farms, Inc.,et al., the Appellate Division, Second Department affirmed summary judgment on the grounds that the plaintiff assumed the risk of falling off a horse while riding. The Appellate Division held that under the doctrine of primary assumption of the risk, by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and which flow from such participation. Further, if the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty. An awareness of a risk is to be assessed against the background of the skill and experience of the particular plaintiff. In Fenty, the record demonstrated that plaintiff had sufficient skill and experience to appreciate the risk of falling off a horse while riding. The Court ultimately held that the risks of falling from a horse or a horse acting in an unintended manner are inherent in the sport of horseback riding. While a party will be found not to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks, a party does assume the risk of an overall obvious risk. Thus, a person should expect to get wet when jumping in the ocean. Special thanks to Johan Obregon for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Liability Of An Out of Possession Landlord (NY) May 19, 2023 < Back Share to: Where a landlord leases a premises and does not retain control over it during the duration of the leased term, a landlord cannot face liability. The prevailing case law holds that an out of possession landlord is not liable for injuries on a leased premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or conduct, to perform the relevant maintenance and repairs. This situation was addressed in the recent decision of Washington v. Jay St. Dev. Corp., 2023 NY Slip Op 01818 (2d Dep’t April 5, 2023), plaintiff alleged she was injured when she tripped over a curled-up edge of a runner mat in the lobby of a building, causing her to slip and fall on the wet marble floor. At the time of the accident, the lower floors of the premises, including the lobby, were leased by the City of New York and the upper floors were leased by commercial tenants. Employees of the City of New York placed and maintained the runner mat on the lobby floor. The landlord, Jay Street Development Corp., moved for summary judgment on the grounds that it was not a proper party to be sued because it was an out of possession landlord with no duty to maintain the lobby. The court noted that because plaintiff alleged common law negligence claims, rather than a violation of a statute, the defendant established its entitlement to summary judgment because it did not have a duty to maintain the premises by contract or conduct. The court further noted that the landlord could transfer its duty to maintain the premises in a reasonably safe condition to the City pursuant to the lease, even though the lobby was in public use, and there was no evidence that the landlord knew or should have known of the dangerous condition at the time the lease was entered into. Failing to raise an issue of fact, the Second Department upheld the lower court’s decision to dismiss plaintiff’s amended complaint as asserted against the landlord. This case serves as a reminder of the factors considered in determining whether liability can be imposed upon an out-of-possession landlord. Thank you to Gabriella Scarmato for her contribution to this article. Should you have any questions, please contact Andrew Gibbs. Previous Next Contact

News Insured's Declaratory Judgment Goes Up In Flames (PA) December 22, 2016 < Back Share to: The Eastern District of PA recently awarded summary judgment to an insurer, as well as $25,000 in damages, for an insured’s material misrepresentation in his insurance application in the case Payne v. Allstate Insurance Co.. On December 31, 2009, the insured, Payne, entered into a homeowner’s insurance agreement with Allstate Insurance Company (“Allstate”) to insure his home located in Philadelphia, PA. As a prerequisite to obtaining the insurance agreement, Payne had to fill out an insurance application. On the application, Allstate specifically asked Payne whether he used any alternative or supplemental heating source in his home. Payne answered “no.” Unsurprisingly, on February 9, 2010, Payne’s home caught fire. Thereafter, Payne filed a claim with Allstate. As part of its claim investigation, Allstate requested that Payne submit to an examination under oath. During the examination, Payne admitted to using kerosene heaters in the home and that the kerosene heaters may have started the fire. After the examination, Allstate denied Payne’s claim leading to a declaratory judgment action. Allstate counterclaimed, suing Payne for breach of contract, breach of common law duty of good faith, and insurance fraud. Both parties filed motions for summary judgment on the issues. Upon review, the court found that Payne made a material misrepresentation when he failed to disclose that he used kerosene heaters, an alternative or supplemental heating source, on his insurance application. Specifically, the court stated that the misrepresentation was material because whether Payne used alternative sources of heat was pertinent to the risk at issue in this case: fire. Because of Payne’s material misrepresentation regarding the use of an alternative heat source in the house, the court granted summary judgment as to Allstate’s claims for breach of contract, breach of common law duty of good faith, and insurance fraud. The court also awarded Allstate $25,000 in damages. Likewise, because of Payne’s material misrepresentation, the court dismissed Payne’s breach of contract claim against Allstate with prejudice. Thanks to Erin Connolly for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News The Big Legal Problem in NYC? Bad Trees. May 15, 2012 < Back Share to: When you think of New York City, capitol of the universe, you probably think of such things as skyscrapers, crowds, hot dogs and the Yankees. But what you probably don’t think of is trees. Yet it is trees that are causing an increasing number of legal headaches for the Big Apple. NYC has approximately 2.5 million trees in the City’s parks and streets and there are plans to plant 1 million more over the next few years. The problem is that, as a result of poor training and a lack of budget funds, the trees are not being properly monitored for damage/disease or other problems. Thus, over the last 5 years, 49 people have been injured and 2 people have been killed by falling trees. Certainly, these are not enormous numbers, but when the NYT runs a front page essay on the problem (and cites trial and deposition testimony) you can bet that the plaintiffs bar is paying attention. You can also surely bet that the Mayor’s office is paying attention – might a change to tree responsibility be around the corner (similar to the sidewalk liability changes of 2003)? Stay tuned to find out. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact