News NY's First Dept. Finds Lull in Snow May Defeat Storm in Progress Defense January 25, 2010 < Back Share to: In Pipero v. New York City Transit Authority, plaintiff fell and injured himself on a snowy day in the city. Defendant tried to avoid liability by invoking the “Storm-In-Progress” doctrine to claim they had no duty to clear the snow until the cessation of the storm. Summary judgment was denied, and the Appellate Division, First Department affirmed the trial court’s denial. Defendant produced weather reports showing that the storm was in progress for the entire day of the Plaintiff’s fall. However, the Plaintiff disputed the accuracy of the report by his testimony regarding a significant lull in the storm. The Courts found that this, and the question of the defendant's negligent maintenance provided triable issues of fact. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_00390.htm Previous Next Contact

News A Call to Arms? Alternative Approaches to PA Dram Shop Liability. January 29, 2009 < Back Share to: PA's current dram shop law holds that establishments licensed to serve alcohol are not liable for third-party injuries unless the injured party can show that the intoxicated person "was sold, furnished or given liquor or malt or brewed beverages by the said [establishment] or his agent, servant or employee when the said customer was visibly intoxicated." Although the statute does not specifically state that an intoxicated person can recover for his own injuries, PA courts have read this right into the statute. In the linked opinion piece, two PA lawyers question whether this is good public policy and suggest alternative approaches. http://pdf.wcmlaw.com/pdf/PA%20Dram%20Shop.pdf Previous Next Contact

News Capacity to Generate Income May Impose Duty on Commercial Owner in NJ May 8, 2012 < Back Share to: In Ethel Gray v. Caldwell Wood Products, New Jersey’s Appellate Court has held that a commercial property owner of a vacant building has a duty to maintain the vacant building’s abutting sidewalk. Plaintiff slipped and fell on the sidewalk abutting defendant’s vacant commercial building that had allegedly not been cleared of snow and ice. Defendants were granted summary judgment by the trial judge who relied on Abraham v. Gupta, 281 N.J. Super. 81 (App. Div. 1995) which held that “the owner of the vacant commercial lot could not be held liable because that property: (1) was not owned by or used as part of a contiguous commercial enterprise or business; (2) did not entertain a daily business activity on the lot to which safe and convenient access was essential; and (3) had no means of generating income to purchase liability insurance or to spread the risk of loss.” Plaintiff demurred and argued that issues of fact remained surrounding the building’s potential to generate income, the active marketing of the building at the time of the accident, the eventual sale of the property, and the owner’s ability to spread the risk as evidenced by commercial insurance coverage on the property. The Appellate Court distinguished Abraham and held that the commercial property owner here was liable because the building had the capacity to generate great income. Moreover, because the commercial property owner was showing the building to potential buyers, it had a duty to maintain the premises in a reasonably safe condition. As such, the Appellate Court reversed the trial court’s decision and remanded the case for further proceedings. http://www.judiciary.state.nj.us/opinions/a0120-11.pdf Thanks to Alison Weintraub for this post. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com . Previous Next Contact

News New York High Court Retains Assumption of Risk Doctrine for High School Athletes April 28, 2023 < Back Share to: With spring baseball in full swing, in a consolidated decision issued April 27, 2023, the NY Court of Appeals recently considered whether high school athletes across the state assume the risk of potential injury when they participate in high school athletics. Over two dissents, the Court retained the longstanding primary assumption of risk doctrine in the limited context of athletic and recreative activities, applying it two different cases in which a high school athlete was injured, leading to litigation against their coaches and school districts. In Secky v. New Paltz Central School District, the Court affirmed summary judgment for a coach and school district after a student suffered an injury during a rebounding drill at basketball practice. In the drill the coach eliminated the boundary lines of the court. The plaintiff was injured when he chased a loose ball towards the bleachers and collided with another player, causing him to fall into the retracted bleachers and injuring his shoulder. The trial court denied defendants’ motion, but the Appellate Division reversed, holding that no fact question existed because the elimination of the boundary lines “did not unreasonably increase the inherent risks” for the player. The Court affirmed summary judgment for defendants because the injury was inherent in the sport of basketball and the risk of collision with the bleachers, an open and obvious item near a court, was inherent in playing on that court. In Grady v. Chenango Valley Central School District, the Court examined whether a creative drill during a baseball practice was as safe as it appeared to be such that plaintiff assumed the risk. In a complicated drill, two coaches hit balls to infielders, one at third base and another at shortstop. The third baseman would throw to first base, and the shortstop would throw to a second baseman, who then threw to a player at a differently positioned first base (“short first base”) several feet away from regulation first base. Coaches placed a 7x7 protective screen between the two different first bases, but the screen did not protect plaintiff’s eye when he was hit by an errant throw. Because multiple balls were thrown in the same direction and separated by a relatively small protective screen, the Court could not hold as a matter of law that the drill was as safe as it appeared to be. The Court reversed summary judgment for defendants, holding that a jury should decide whether the drill uniquely presented a dangerous condition over and above the usual dangers inherent in baseball and whether the player’s awareness of risks inherent to baseball and team practice encompassed the risks from this unique drill. Thanks to Abed Bhuyan for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News WCM Associate to Serve as Co-Chair of American Bar Association Committee. October 24, 2017 < Back Share to: WCM Associate Sathima Jones, who works in WCM's Philadelphia office, has been selected to serve as Co-Chair of Articles and Editor of the American Bar Association’s Minority Trial Lawyer Committee’s Newsletters. Prior to her appointment as co-chair, Sathima previously served as an author and editor of the American Bar Association’s blog “Practice Points” for three (3) years. Sathima focuses her practice on commercial litigation (including insurance coverage) and property damage litigation. For more information about this post please e-mail Bob Cosgrove. Previous Next Contact

News Lions and Tigers and Bears, Oh My! November 8, 2011 < Back Share to: There have been a lot of news reports about escaped exotic animals lately –- an escaped flamingo in Westchester the other week; the Ohio zoo owner who released all of his animals before killing himself last month; the Central Park Zoo peacock found sitting on a window ledge on Fifth Avenue in Manhattan earlier this summer; and of course, the poisonous Bronx Zoo cobra that slithered its way around NYC for an entire week back in April of this year. All of these stories got us thinking about the insurance implications of wild animal escapes and apparently we were not the only ones. New York Magazine’s [i]Daily Intel[/i] blog recently published an interesting article about the unique world of zoo and wildlife preserve insurance. Typically, this type of insurance policy is not issued by a major insurance company, but by niche underwriters who specialize in these types of exotic risks. The insurers can issue a large policy covering the entire wildlife operation, or they can issue per-animal coverage based upon the type of animal, whether it is poisonous, its natural intelligence, its likelihood of causing damage or the type of injury the animal might inflict upon a human if it escaped. Quite naturally, the insurer that Daily Intel interviewed for the article owns a personal Noah’s ark of 26 tigers, leopards, cougars, emus, yaks, and Watusi cattle! Another interesting point – in light of last month’s animal escape in Ohio, that state’s legislature has proposed a law requiring exotic animal owners to carry a minimum of $250,000 liability insurance and to implant electronic tracking devices in their animals Thanks to Alex Niederman for his contribution to this post. http://nymag.com/daily/intel/2011/10/so_what_kind_of_insurance_poli.html http://www.officer.com/news/10441128/ohio-draft-law-would-limit-exotic-animals Previous Next Contact

News The Broad Scope of “The Integral to the Work” Defense is Confirmed in Labor Law Claims September 16, 2022 < Back Share to: In Ruisech v. Structure Tone Inc., plaintiff was working at a construction site attempting to install a heavy glass divider when he stepped forward to place the glass into the track and stepped on “minute” pebble near the track. His foot slipped forward but he did not fall, yet plaintiff claimed he sustained injuries. Plaintiff admitted that his co-workers created the debris that was the pebbles during their installation work, therefore the pebbles were created by the manner in which plaintiff’s employer performed its work. Based on this, the court dismissed plaintiffs Labor Law 241(6) claim due to the integral to work defense. The court confirmed that the integral to the work defense applies to things and conditions that are an integral part of the construction, not only to the specific task a plaintiff may be performing at the time of the accident. The Labor Law 200 claim and common law negligence was also dismissed. Plaintiffs’ employer was a subcontractor hired by a general contractor to perform glass work. The party that leased the 19th floor where plaintiff was working hired the general contractor. The Court dismissed plaintiffs Labor Law 200 claim and common law negligence against the lessee because the lessee did not create the condition at issue, nor did they have notice. The pebbles were created by the plaintiffs’ employers work and were not an existing defect or dangerous condition. When defending Labor Law claims it will be important to focus on the whole scope of a plaintiff’s employers work, not only what the plaintiff was hired to do. Thanks to Jennifer Tuz for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News NJ School District Settles Student Bullying Suit For $4.2M April 18, 2012 < Back Share to: The Ramsey , N.J. School District has entered into a $4.2 million settlement with a student who was permanently paralyzed from the waist down after being punched in the stomach by a known bully at his middle school. The settlement is believed to be the largest yet from a lawsuit predicated on a school district's failure to comply with anti-bullying laws. The student, Sawyer Rosenstein, had previously sent emails to school officials pleading for help and indicating that the bullying incidents had been increasing. It was also alleged that the school district made little or no effort to comply with the anti-bullying laws prior to the attack and that Rosenstein's attacker had a history of assaults. http://www.northjersey.com/news/Bullying_suit_settled_for_42_million.html Previous Next Contact

Professionals need to be confident that the attorneys retained to defend them know more than law; they must also know the nature of the business of the professional in order to mount a successful defense to malpractice or errors and omissions claims. WCM has that edge. Drawing on our background in property, casualty and insurance litigation, WCM attorneys have firsthand experience with the risks faced by professionals such as architects, accountants, attorneys, directors and officers, engineers, financial service professionals and insurance brokers and agents. WCM takes great pride in the fact that our practice in this area has grown from referrals within the professional network, many of whom have the choice of counsel in their professional insurance policy. And the successful outcomes that WCM attorneys have achieved fully justifies that choice. Professional Liability Professionals need to be confident that the attorneys retained to defend them know more than law; they must also know the nature of the business of the professional in order to mount a successful defense to malpractice or errors and omissions claims. WCM has that edge. Drawing on our background in property, casualty and insurance litigation, WCM attorneys have firsthand experience with the risks faced by professionals such as architects, accountants, attorneys, directors and officers, engineers, financial service professionals and insurance brokers and agents. WCM takes great pride in the fact that our practice in this area has grown from referrals within the professional network, many of whom have the choice of counsel in their professional insurance policy. And the successful outcomes that WCM attorneys have achieved fully justifies that choice. Practice Lead Michael A. Bono Executive Partner +1 212 267 1900 mbono@wcmlaw.com Download Download

News “WCM Partner Recognized As Rising Star” March 4, 2016 < Back Share to: Wade Clark Mulcahy LLP is pleased to announce that Colleen E. Hayes, Partner in the Philadelphia office, was selected as a 2021 Pennsylvania Rising Star. Colleen handles, inter alia, litigation arising out of a variety of coverage contract disputes, including matters involving general liability, professional liability, first-party property, product recall, fine arts, jewelers block, and “bad faith” claims. Being selected to Rising Stars is limited to a small number of attorneys in each state. As one of the few attorneys to garner the distinction of Rising Stars, Colleen has earned the respect of peers as one of the top-rated attorneys in the nation. Each year, no more than 2.5 % of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Previous Next Contact

News NY App. Div. Upholds Summary Judgment to Insurer in Intentional Crash February 3, 2011 < Back Share to: The case of Commercial Insurance Company of Newark v. Popadich involved a rather sensational incident which took place in Manhattan several years ago. In February 2002, on two separate occasions, Ronald Popadish drove into Manhattan and ran down 27 pedestrians. One of Popadich’s, victims, Chetan Mangat, then brought a personal injury action against Popadich in Supreme Court, Kings County for injuries he suffered after being struck by Popadich’s vehicle. Popadich’s insurer, Commercial Insurance Company of Newark provided Popadich with counsel to defend him in that action under a reservation of rights. Although, after his arrest, Popadich had confessed that he drove into Manhattan for the sole purpose of running over as many people as possible, Mangat was awarded summary judgment in the Kings County action on the basis that Popadich's negligence caused Mangat's injuries. Commercial Insurance then brought a declaratory judgment action in Supreme Court, New York County against Popadich, Mangat and other victims of Popadich’s rampage. In the New York County action, Commercial sought a declaration that it owed Popadich no duty to defend or indemnify arguing that Popadich’s actions were intentional and, as such, the resulting injuries were not covered under the policy. The New York County court rejected the proposition that Commercial Insurance was estopped from bringing the declaratory judgment action due to its appointment of counsel in the Kings County action, noting its reservation of rights and the fact that the issue of intentional acts was not argued in that case. Citing Popadich’s signed and transcribed confession, the New York County granted summary judgment to Commercial Insurance on the grounds that Popadich’s actions were intentional. This decision was upheld on appeal to the Appellate Division. Thanks to Katusia Lundi for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08858.htm Previous Next Contact

News Cowboys Fan Attacked by Eagles Fans at the Link Loses Again - Case Dismissed (PA) October 16, 2019 < Back Share to: Tough week for Cowboys fans. First, "America's Team" succumbs to the previously winless Jets. Then, a Cowboys fan who was assaulted by Eagles fans at the Link in Philadelphia had his verdict tossed by the Superior Court of PA, which vacated the trial court’s judgement and found in favor of the Appellants in the matter of Pearson v. Philadelphia Eagles, LLC, et al., 2019 PA Super 304 (Oct. 11, 2019). Pearson brought this suit in the Court of Common Pleas of Philadelphia County on August 2, 2016, after he was attacked at a Philadelphia Eagles game on December 14, 2014. Pearson, a Dallas Cowboys fan, was taunted by Eagles fans while in line for the restroom, and made a comment to the Eagles fans to “get a ring and we’ll talk.” A fight subsequently broke out in the restroom which led to Pearson’s right leg injury. A May 25, 2018 jury trial found Appellants casual negligence to be 50%, Apex’s (who was a party in the underlying suit, but not a party on appeal) casual negligence to be 30%, and Pearson’s own causal negligence to be 20%. The Jury awarded Pearson $700,000 in damages. Appellants filed a motion for judgement notwithstanding the verdict on June 4, 2018 based on their contention that Pearson failed to set forth a prima facie case of negligence against Appellants. They alleged that Pearson failed to prove that the Appellants were negligent in implementing their security, and therefore couldn’t prove that they breached a duty that led to his injury. The trial court subsequently denied this motion, in a decision we reported on earlier this year. The Court evaluated the elements of negligence as the following four elements (1) a duty of obligation recognized by law, (2) a breach of the duty (3) casual connection between the actor’s beach of the duty and the resulting injury and (4) actual loss or damage suffered by complainant. See Wilson v. PECO Energy Co., 61 A. 3d 229, 232 (Pa. Super 2012). In overturning the lower court's decision, the Superior Court found that the Appellants had no notice that an attack such as the incident with Pearson would occur, nor were they aware of any prior instances of violence in the bathrooms of the stadium. In fact, Appellants stated that fighting in the bathrooms was a very rare occurrence at the stadium. Accordingly, the Court held that the trial court erred in denying the Appellants motion for judgment notwithstanding the verdict, and therefore reversed said order of denial, and remanded the case to trial court for entry in favor of Appellants. Thanks to Emily Finnegan for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact