News Off Trail Hiker Falls Off Cliff And So Does His Claim (NY) December 4, 2020 < Back Share to: In Weirich v Finger Lakes Land Trust, Plaintiff brought suit against the Defendant after suffering injury after falling down a steep slope in a nature preserve. Defendant, a nonprofit organization, is responsible for the conservation of Carpenter Falls through a stewardship agreement with the State Department of Environmental Conservation. The Stewardship Agreement provides the scope of activities in which Defendant is required and permitted to perform, including: “routine maintenance and rehabilitation activities on the kiosk, parking area, and trail segments.” Plaintiff approached steep and slippery rocky terrain with no handrails and plaintiff slipped and “fell off” the cliff, and he was injured. Plaintiff filed this current action claiming the accident occurred as a result of Defendant's negligence under the theory of premises liability. As part of their duties, Defendant was required to maintain the kiosk area located at the entry point of the trail but was restricted to only post signage approved by the DEC. At the time of the accident, there were three “warning signs” at the kiosk area. Defendant filed a motion for summary judgment arguing that they do not possess control over this land and therefore do not owe a duty and plaintiff assumed the risk by walking off the demarcated path. The lower Court, as a threshold question, determined that there was no duty of care. In the case at hand, while the Court recognizes that Defendant contracted to inspect and maintain Carpenter Falls, and Plaintiff was within the zone of intended safety services, the Court ruled that Defendants did not have exclusive control of the land and that this specific injury was not foreseeable Defendant were only responsible for maintaining and removing trees and brush on the trails. The DEC expressly maintained a certain level of control within the stewardship agreement and thus the Defendant was not liable for the area where plaintiff fell. The lower Court also ruled that the plaintiff assumed the risk by engaging in the activity of trail hiking and therefore must assume the risk inherent in recreational hiking, including obvious features of the trail, as any trail in close proximity to a cliff or rock ledge, there is an inherent danger of falling. Plaintiff was hiking and climbing rocky terrain close to a cliff's edge and there was testimony that the change in slope elevation was sudden and without warning. However, rather than turning around, he continued. Further, the Court finds that the three signs placed at the kiosk adequately warned Plaintiffs of the inherent dangers. Therefore, the Court finds that with hiking (or even walking with sightseeing at a waterfalls) there comes inherent danger with slippery terrain, cliffs, and rocks, there comes the inherent risk of falling. Thanks to Paul Vitale for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News How Far Does The Duty To Provide A Safe Worksite Extend? (NY) April 23, 2021 < Back Share to: In Potenzo v. City of NY, the Appellate Division, First Department addressed whether the plaintiff was entitled to partial summary judgment against the defendants City of New York and Tishman Technologies on the Labor Law § 241(6) claim. Plaintiff brought this cause of action against the defendants for personal injuries sustained when he fell on ice while walking on a path between “the fenced-in area from the security guard booth” and the worksite entrance. The question before the court was to determine if the path was considered a “walkway”. The court stated, “Labor Law § 241(6) imposes a nondelegable duty upon owners, contractors and their agents to provide adequate protection and safety for workers. To establish a claim under this section, plaintiff must allege that defendants violated a rule or regulation promulgated by the Commissioner of Labor that sets forth a specific standard of conduct.” (citations omitted). The Appellate Division rejected the lower courts holding that 12 NYCRR 23-1.7(d) did not apply, which states, that no employee shall be allowed “to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition” and requires the removal of any “[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing.” The court held that “there are no issues of fact to preclude” summary judgment in plaintiff’s favor because: 1) the path plaintiff slipped on was between the security guard booth and the worksite entrance; and 2) it was one of two entrances to the worksite that was used by the workers and as such, the path plaintiff slipped on “clearly qualifies as a walkway within the meaning of 23-1.7(d).” This decision serves as a reminder that the duty upon owners and contractors to provide a safe worksite can extend to a walkway a worker uses even before entering the site. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Second Department Affirms Labor Law SJ Denial Due to Conflicting Accident Accounts (NY) December 3, 2018 < Back Share to: In Giannas v 100 3rd Ave Corp, Plaintiff was repairing fencing on the fourth floor of a building when he noticed what appeared to be a metal stud nailed across an open window. Plaintiff crawled onto the scaffolding outside the building to knock the stud into the building by hitting it with his hammer. However, the scaffolding moved toward the street, causing him to lose his balance and fall through the window, into the building. Plaintiff alleged violations of Labor Law §§ 200, 240(1) and 241(6), and moved for summary judgment on Labor Law §240(1) cause of action but the Court denied the motion. In addition, the Court granted the construction manager’s motion for summary judgment dismissing the complaint as asserted against it. Finally, the Court granted the subcontractor scaffolding company’s motion for summary judgment dismissing the Labor Law §§ 200, 240(1), and 241(6) causes of action, and denied that branch of its motion which was for summary judgment dismissing the common-law negligence cause of action. Plaintiff and the scaffolding supply and installation company appealed the Court’s decision. On appeal, the Second Department affirmed the lower court’s order granting the construction manager summary judgment on Labor Law §240(1) reasoning that the construction manager had no control of the means and methods of work under the contract and did not control the work or supervise safety. The Appellate Court further affirmed the lower court's denial of plaintiff’s motion for summary judgment on Labor Law §240(1)because there were conflicting accounts of how plaintiff fell, including whether he had ever mentioned that the scaffold moved causing him to fall. Finally, the subcontractor’s motion for summary judgment on common-law negligence was denied because of question of subcontractor’s affirmative negligence for launching an instrumentality of harm under Espinal, which also required denial of subcontractor’s motion on contractual indemnity. Thanks to Meg Adamczuk for her contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Third Circuit Strikes Down Local NJ Wineries Right To Sell Directly To Consumers December 22, 2010 < Back Share to: In Freeman v. Corzine, the Third U.S. Circuit Court of Appeals held that a portion of New Jersey's alcoholic beverage control law violated the Commerce Clause by requiring out of state wineries to sell through wholesalers and retailers while allowing local NJ wineries to open shops at their farms to sell directly to consumers. The plaintiff's included wine connoisseurs, a couple seeking more access to Kosher wines and a California winery who had sued NJ for the right to order wine by telephone or online and have it shipped directly to individuals homes. The Court found the bulk of the beverage control statute constitutional except the portion covering local wineries direct sales. http://caselaw.findlaw.com/us-3rd-circuit/1548892.html Previous Next Contact

News Department Store Escalator Injury Lawsuit Settles for $15 Million (NJ) May 27, 2016 < Back Share to: Countless customers ride escalators in malls and retail stores every day without incident. Unfortunately, that was not the case for ten year old Juliana Valdez. As she was riding the escalator in a New Jersey Macy’s store with her family, her leg became trapped and could not be dislodged until a bystander pressed the emergency stop button and portions of the escalator were removed. Valdez and her family sued Macy’s and the escalator maintenance company, ThyssenKrupp alleging negligence and breach of contract; her parents asserted a claim for loss of consortium. Although the District Court determined that Valdez’s parents were not entitled to damages for loss of their child’s consortium (comfort and company), the court allowed the parents to argue loss of Juliana’s services (contribution to household duties). Evidence revealed during litigation indicated that the escalator had been installed approximately 55 years prior to the accident, and was one of the oldest operating escalators in New Jersey. The Valdez family also discovered evidence that the aged escalator had not been properly maintained due to the disruption maintenance caused to Macy’s retail business operations. After 3 years of litigation for the parties, and 22 surgeries for Juliana, the Valdez family recently settled their case for $15 million dollars. Although the specific terms of the settlement have not been revealed, and neither defendant has conceded liability, the 8-figure payout speaks for itself. Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News No Coverage for Independent Rideshare Driver (PA) August 3, 2018 < Back Share to: Ridesharing is a common and convenient mode of transportation. In 2015, the Pennsylvania General Assembly enacted the “Ridesharing Arrangements Act”, an amendment of a law passed in 1982 designed to encourage ridesharing. Under the Ridesharing Arrangements Act, any “provision in an insurance policy which deny coverage for any motor vehicle used for commercial purposes or as a public or livery conveyance shall not apply to a vehicle used in a ridesharing arrangement.” 55 P.S. § 695.5(a). Recently, the Superior Court of Pennsylvania considered whether the Ridesharing Arrangements Act voided an auto policy exclusion that precluded coverage to an insured “FOR DAMAGES ARISING OUT OF THE OWNERSHIP, MAINTENANCE, OR USE OF A VEHICLE WHILE IT IS BEING USED TO CARRY PERSONS FOR A CHARGE. This exclusion does not apply to the use of a private passenger car on a share-the-expense basis” (“Auto Exclusion”). In Harley v. Riders’ Club Cooperation, the Superior Court reaffirmed the trial court’s rationale and holding that the insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), was legally permitted to disclaim coverage because the Ridesharing Arrangements Act did not apply, and therefore, did not void the policy’s Auto Exclusion. According to the trial court, the defendant, Riders’ Club Cooperation (“Riders’ Club”), is a not-for-profit cooperation providing transportation services to its members. Members of Riders’ Club serve as the drivers. Riders’ Club requires the drivers to enter agreements, which classify them as independent contractors, obligates them to obtain/maintain personal insurance coverage, and requires them to driver their own cars when transporting Riders’ Club members. In exchange for their transportation services, the drivers are entitled to receive 75% of the fee paid for each ride provided. In September 2015, Paul Butler (“Butler”), a member of Riders’ Club, was contacted by Riders’ Club to drive fellow Riders’ Club member, Erin McDonald (“McDonald”), and her nurse, Dana Harley (“Harley”), to McDonald’s school. While transporting McDonald and Harley, Butler struck the rear of a school bus. Unfortunately, Harley sustained injuries from the accident and ultimately asserted a claim for damages against Butler. At the time of the accident, Butler was insured by State Farm. In reliance on the above-referenced Auto Exclusion, State Farm disclaimed coverage because “Butler’s vehicle was being used to carry persons for a charge.” Subsequently, Harley initiated a declaratory judgment action arguing that the exclusion was void and unenforceable under the Ridesharing Arrangements Act. The trial court’s decision hinged on whether Butler’s vehicle was being used in a “ridesharing arrangement” and whether Riders’ Club qualified as “ridesharing operator” at the time of the accident. Ultimately, the trial court held that Butler’s car was not being used in a “ridesharing arrangement” because Riders’ Club did not operate or control Butler’s car. Although Butler was a member of Riders’ Club, he was classified as an independent contractor. Accordingly, as a matter of law, Butler’s actions could not be imputed to Riders’ Club. Riders’ Club’s only role involved contacting Butler to determine his availability to drive McDonald and Harley – Riders’ Club merely instructed Butler as to the time, location, and date for the ride. Moreover, Riders’ Club only collected and distributed paid fees to its drivers and did not dictate routes or speed. In further support of its conclusion, the trial court focused on how Riders’ Club organized its services to avoid potential legal liabilities and other responsibilities flowing from a master-servant relationship in its agreements with the drivers. Without any “ridesharing operator”, a “ridesharing arrangement” did not exist. Accordingly, the Auto Exclusion applied to bar coverage to Butler for the accident. The concept of ridesharing poses numerous questions about the relationship between operators and drivers and whether policies provide or bar coverage. In this case, all of the parties agreed Butler was an independent contractor. Yet, this begs the question as to whether it would have been the same result if Butler was classified as an agent of Riders’ Club. While many questions remain unanswered, this non-precedential decision provides a glimpse into the potential direction Pennsylvania Courts are taking in the context of rideshare arrangements and insurance coverage. Thanks to Lauren Berenbaum for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News PA Supreme Court Finds that a Corporation’s Owners Can Be Liable for Conduct of Sister Corporation July 29, 2021 < Back Share to: The Pennsylvania Supreme Court recently confronted a novel question: can a sister corporation’s owners be held personally liable for the actions of the corporation’s sister company? In Mortimer v. McCool, the plaintiff suffered severe and permanent injuries in a car collision after she had been struck by a drunk driver. She sued the restaurant that served the driver that struck her. Eventually, the jury awarded her a $6.8 million dollar judgment against the company that managed the restaurant that served the drunk driver, 340 Associates. However, 340 Associates did not have enough assets to satisfy the judgment. Mortimer then sought to satisfy her judgment by seeking the assets of 340 Associate’s sister company’s owners. The doctrine Mortimer sought to avail herself of—known variously as “single entity,” “enterprise liability” or “horizontal liability”—is novel to Pennsylvania law. Essentially, the doctrine permits the corporate veil of a sister corporation be pierced, and allows the plaintiff to seek that corporation’s owners’ assets after its sister company is found liable. Ultimately, the court adopted a two-prong test to determine whether a corporation’s veil could be pierced to satisfy a judgment against its sister corporation. The court found that the two companies, and their owners, must have at least some common interest, and there must be some fraud or wrong committed. Despite its recognition that the corporate veil of a sister company could be pierced to satisfy a judgment, the court did not find the circumstances present in Mortimer because the two owners of the sister company did not have an interest in both companies. The outcome in Mortimer still provides that there are only narrow circumstances where a sister company’s corporate veil will be pierced. Thanks to John Lang for his contribution to this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News Soverign Immunity Remains Tough to Overcome in PA. November 23, 2011 < Back Share to: Recently, a three-judge panel of the Pennsylvania Commonwealth Court affirmed the South Eastern Pennsylvania Transportation Authority’s (SEPTA) claim of sovereign immunity in a stationary bus accident. In the case of Wright v. Denny, suit was brought against SEPTA to recover damages stemming from a June 30, 2007 accident where plaintiff was injured when an uninsured driver rear-ended the stopped SEPTA bus he was travelling on. Suing under Pennsylvania’s Motor Vehicle Financial Responsibility Law (MVFRL), the plaintiffs argued that SEPTA was obligated to pay benefits out of its uninsured-underinsured coverage for the June 30 incident. Further, the plaintiffs also claimed that SEPTA was exposed to liability given the motor vehicle exception to sovereign immunity. Senior Judge James R. Kelley, writing for a unanimous court, rejected the plaintiff’s contentions, noting that actions brought pursuant to the MVFRL must comport with the narrowly interpreted provisions of the state’s immunity statues. In Pennsylvania, the motor vehicle exception is applicable only when the local agency’s vehicle is in “operation.” Citing the Pennsylvania Supreme Court’s decision in Love v. City of Philadelphia, Kelley applied a strict definition of “operation” requiring actual motion to trigger the exception. Kelley then went on to explain that stopped vehicles are protected by immunity because “[m]erely preparing to operate a vehicle, or acts taken at the cessation of operating a vehicle are not the same as actually operating that vehicle.” Given that the bus was stopped at the time it was struck, Kelley easily concluded that SEPTA was not subject to the exception thus barring the plaintiff from relief. Special thanks to Adam Gomez for his contributions to this post. For more information about it, or WCM's Pennsylvania practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News In Defense Of Diligence: Second Department Stresses Timely Inspections For Alleged Defects March 8, 2024 < Back Share to: Recently, in Vazquez v. Fordham University , 2024 N.Y. Slip Op. 01124, the Second Department ruled on a plaintiff’s appeal, after the lower court granted summary judgment in favor of premises owner defendant. Plaintiff alleged a trip and fall, where she fell down a flight of steps, which she attributed to a light outage which prevented her from seeing the unevenness of the steps she was traversing. In moving for summary judgment, defendant argued that they lacked actual or constructive notice of the light outage, and admitted a report compiled by an expert who examined the stairs at issue in an attempt to argue that the alleged defect was trivial. The Second Department reversed the lower court’s granting of summary judgment to defendants. Although the court agreed with defendant that they lacked both actual and constructive notice of the light outage, the court disagreed with their argument that the condition of the defective steps was trivial. The court noted that the main support defendants used in arguing the defect was trivial was an expert report. However, according to the court, “the report by [defendant’s] expert had no probative value because the expert did not examine the steps until more than three years after plaintiff’s accident.” Because of this long time-difference between plaintiff’s accident and defendant’s expert report, defendant failed to demonstrate, prima facie , that the alleged defect was trivial, and thus plaintiff’s claim was reinstated. This case serves as a reminder of the importance of quickly organizing an inspection of an alleged defect shortly after an alleged accident. Otherwise, the court will severely discount the probative value of an inspection conducted much later after the accident. Vasquez v. Fordham University .pdf Download PDF • 137KB Previous Next Contact

News D.E.A. Agents Claim "American Gangster" Libeled Them January 17, 2008 < Back Share to: Three former Drug Enforcement Administration agents filed a defamation lawsuit in Federal Court in lower Manhattan, accusing NBC Universal Studios of including an incorrect postscript at the end of its film "American Gangster", indicating three-quarters of the agents that served with the New York D.E.A. were convicted with the help of Frank Lucas, the film's main character. The plaintiffs also took issue with how Mr. Lucas' arrest was depicted in the movie. http://www.nytimes.com/2008/01/17/nyregion/17dea.html?ref=todayspaper Previous Next Contact

News New Jersey Court Finds No Personal and Advertising Injury Coverage for Wrongful Eviction Claim Where There is No Possessory Interest or Right of Occupancy < Back Share to: In Watford Specialty Insurance Company v. MDF 92 River Street, LLC , the New Jersey Appellate Division recently addressed a coverage dispute arising from incident in which a bar patron was injured when he was allegedly thrown down a flight of stairs by bouncers while trying to remove him from the bar. The patron sued the bar and the bouncers for assault and battery and negligence, later amending the Complaint to include a claim of wrongful eviction. The bar owner sought coverage under its CGL policy. The Policy contained an Assault and Battery endorsement which, among other things, provided an eroding $1 million liability limit for such claims. The policy also contained personal and advertising coverage for, among other things, the wrongful eviction from occupancy of a room, dwelling or premises that a person occupies. The insurer Watkins advised that coverage was limited to less than $200,000 as the liability limit for assault and battery claims under the endorsement had been eroded by payment of several other claims. An arbitrator issued a net award of $450,000 against the defendants for plaintiff’s “wrongful eviction and assault” claims. Plaintiff confirmed the award, obtained a judgment against the bar owner, and secured an assignment of rights from the owner. Watkins paid the remainder of the liability limit to plaintiff and sought declaratory judgment that its obligation was limited by the terms of the Assault and Battery endorsement. Plaintiff argued that he was entitled to difference between the judgment and the amount paid by Watkins since the erosive limits under the endorsement did not apply to his wrongful eviction claim under Coverage B. The trial court denied plaintiff’s motion for summary judgment and granted Watkin’s cross motion, finding that Watford had satisfied its obligations under the Policy and that any unsatisfied part of the judgment was not covered by the policy. In doing so, the trial court relied on certain caselaw holding that individuals who do not have a possessory interest in rental property were not covered by a wrongful eviction provision in a landlord’s policy. The Appellate Division affirmed, holding that the underlying plaintiff’s claims emanated from the alleged assault, and crucially, he lacked a possessory interest or the right of occupancy at the bar to trigger coverage for his wrongful eviction claims. Accordingly, the liability limit set forth in the Assault and Battery endorsement applied and Watford had no further coverage obligation because the limit had been fully eroded. The Court agreed that Watford had met all its obligations under the policy and did not have to pay the balance of the judgment obtained against the bar owner. The takeaway from Watkins is that a possessory interest or right of occupancy is required for an insured to obtain coverage for a wrongful eviction claim where the policy language contains that requirement. The Watkins court conducted a careful analysis of the policy language and facts of the case to reach the correct decision and reject the insured’s creative and result-oriented arguments in favor of coverage. Thank you to Bryan Gonzalez-Mejia for his contribution to this post. Please contact Andrew Gibbs with any questions. WATFORD SPECIALTY INSURANCE COMPANY Plaintiff-Respondent v MDF 92 RIVER STREET LLC, et al .pdf Download PDF • 202KB Previous Next Contact

News Yankees Safe in Foul Ball Accident (NY) November 9, 2017 < Back Share to: Yankees fans will recall a scary incident in late September where a young child was struck by a foul ball at Yankee Stadium. Although there has been no word whether the family will sue the Yankees, a recent appellate decision may impact the issue. In Zlotnick v. New York Yankees Partnership, plaintiff brought a personal injury action against the Yankees for injuries sustained when he was struck in the eye by a foul ball as he was sitting in his seat halfway down the first-base line, a few rows from the field. The Supreme Court granted the Yankees’ motion for summary judgment and plaintiff appealed. The First Department upheld the lower court’s decision and ruled the Yankees did not breach a duty of care, since the evidence showed that appropriate netting was erected behind home plate (which is essentially the limit of what a stadium is required to do to meet the duty of "reasonable care") and there was no evidence indicating that there was a lack of available seating in this protected area. The Court rejected plaintiff's argument that the defendants' conduct enhanced the risks normally attendant to the game of baseball because the game was played in rainy weather, and that the Yankees did not enforce the stadium's policy against the use of umbrellas that obstruct the ability of other patrons to view the game, because rainy weather and umbrellas are not uncommon at baseball games. In addition, the Court pointed to the warnings about foul balls on the back of plaintiff's ticket, on the back of the seats, as well as those regularly made over the public address system, which called upon plaintiff to request a change of seating if plaintiff was worried about being struck by a foul ball. Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact