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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 PA Supreme Court Rejects Two Civil Procedure Changes That Would Have Impacted Insurers. November 20, 2009 < Back Share to: The PA Supreme Court Rules Committee has apparently declined to proceed with two proposed changes to the rules of civil procedure that would have impacted insurers. The first proposal, Recommendation 240, would have amended Rule 1020 to require pleading a single cause of action to recover for personal injury and property damage arising from the same accident. This would have had a large impact on subrogation cases (especially in the auto context) where a carrier paid a property damage claim, but then the insured wished to proceed with a personal injury action. Under the now rejected amendment, all of the claims would have had to have been brought in the same lawsuit. Recommendation 239 has also been tabled. Under this recommendation, Rule 212.3 and 212.5 would have been amended to give the court more authority to require the presence of an insurance representative at pre-trial and settlement conferences. Previous Next Contact

News Settlement with Insurer Not a Basis for Dismissal of Claims Against Brokers March 22, 2018 < Back Share to: In Prime Alliance Group Ltd v Affiliated FM Insurance Company, the insured, was the owner of a mixed use condominium and retail property in Manhattan. The Property suffered significant flood damage during Superstorm Sandy in October 2012, and a claim (for upwards of $30M) was made to Affiliated. Following Affiliated disclaimer of coverage for the property damage (the bulk of the claim), Prime Alliance sued alleging claims of breach of contract, bad faith and estoppel as against Affiliated, and claims of negligence and breach of contract against their retail insurance broker, Praxis, and claims of negligence against HUB, the wholesale insurance broker. The claims asserted against HUB and Praxis were premised on the brokers’ alleged failure to procure adequate and requested insurance coverage. Praxis and HUB moved to dismiss on the basis that a settlement reached between Prime Alliance and Affiliated mooted the separate claims against the broker defendants. The lower court granted the motion since the insurer that settled with the Plaintiff and was no longer a party to the action, “and Affiliated is the only party which could (or would) raise a defense that the contract did not provide the flood coverage at issue, there can be no finding in this case contrary to plaintiff’s claim that the disputed coverage did in fact exist. Thus, there can be no finding that Praxis [or HUB] was responsible for a lack of coverage.” The Appellate Court disagreed, finding that Affiliated’s settlement with plaintiff left the question of the validity of its disclaimer entirely undecided, and provided no basis for the motions to dismiss and for summary judgment filed by the broker defendants. Putting a fine point on the matter, the Appellate Division specifically stated that the decisions granting both the Praxis and HUB motions were based “on the incorrect premise that the plaintiffs’ settlement with Affiliated precluded the plaintiffs from pursuing their causes of action to recover damages for failure to procure insurance.” The matter was to be reinstated in the New York Supreme Court for adjudication. In the short term, this decision provides a sound argument to rebut an argument that a plaintiff’s settlement with their insurer effectively moots any claims for negligence asserted against brokers. Thanks to Vivian Turetsky for her contribution to this post.   Previous Next Contact

News Insurer Benefits from New Jersey Appellate Division’s Reading of Assault and Battery Exclusion (NJ) September 4, 2020 < Back Share to: In Pickett v. Moore’s Lounge, the Appellate Division had to interpret an assault and battery exclusion set forth in a tavern’s CGL insurance policy. A patron of Moore’s had shot and killed Roger Pickett while at the tavern after a verbal fight. The Estate of Pickett filed a seven-count complaint against the tavern, including claims of wrongful death, a violation of a liquor statute, negligent management of employees, negligent hiring, negligent training and negligent retention of tavern employees who allegedly caused the incident. The insurer denied coverage under the assault and battery exclusion. The tavern then settled plaintiff’s claim but sought indemnity from its insurer. The Assault and Battery exclusion provided a justification for the insurer to deny coverage because the injuries sustained by Pickett arose out of any act of assault or battery committed by any person, including any act or omission in connection with the prevention or suppression of such assault or battery. The Appellate Division held that the exclusion was unambiguous and would, therefore, be enforced. The exclusion plainly encompassed negligent acts or omissions that failed to prevent or suppress the assault or battery. This embraced the estate’s general allegation that the tavern negligently failed to exercise reasonable care to assure the tavern was a safe place. This case illustrates the importance of closely scrutinizing the wording of an assault and battery exclusion in a policy, as these exclusions are not one size fits all. Thanks to Mike Noblett for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News App. Div: School's are Not Insurers of Student's Safety During Recess May 8, 2012 < Back Share to: In Benavides v Uniondale Union Free School Dist., the infant-plaintiff - a second-grade student - commenced an action against his school for inadequate supervision after he was pushed down a slide by a fellow student during recess. The school established its entitlement to summary judgment by showing the playground was adequately supervised and that the level of supervision was not a proximate cause of the subject accident. In affirming the decision, the Appellate Division stated schools cannot reasonably be expected to continuously supervise and control all movements and activities of its students and cannot be held liable for every thoughtless or careless act by which one pupil may injure another. Notably, the Second Department considered the plaintiff's 50-h hearing testimony. Typically, trial courts have required a hearing to determine if an infant is swearable (understands the obligation to testify truthfully) before considering any testimony. Here, the plaintiff's attorney claimed that the testimony was inadmissible because of his client's age. However, the court refused to consider the plaintiff's argument stating it was improperly raised for the first time on appeal. Thus, as the swearability of an infant plaintiff does not present a pure question of law appearing on the face of the record, the Courts have the discretion to consider an infant's testimony at face value without such a hearing. Thanks to Bill Kirrane for this post. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Starbucks Tea Trumps McDonald's Coffee November 3, 2010 < Back Share to: Rachel Moltner, age 76, stopped in at a Starbucks on the upper east side of Manhattan one winter's day in 2008 for a hot beverage. Her barista poured her a venti-sized, 190-degrees Fahrenheit cup of tea, double-cupped it, and put on a lid. Ms. Moltner went to a table and was wrestling the lid off in order to add sugar, when she spilled the tea onto her leg and foot. From there, things really went downhill. Ms. Moltner required a skin graft to repair the burns to her leg and, during her stay in the hospital, she developed bed sores and then fell out of bed, fracturing her sacrum and herniating a disc or two. With visions of Stella Liebeck's 1992 hot coffee lawsuit against McDonald's no doubt in mind, Ms. Moltner sued Starbucks. She filed suit in state court in New York but Starbucks removed the case to federal court. The federal judge who reviewed the case dismissed it, saying that "no reasonable fact finder could conclude that the tea's 190 F temperature took plaintiff by surprise." http://caselaw.findlaw.com/us-2nd-circuit/1543460.html Previous Next Contact

News Following the Letter of the Law Does Not Always Negate Responsibility for New York Drivers < Back Share to: In New York, the driver of a vehicle with the right-of-way is entitled to assume that other drivers will yield in compliance with the Vehicle and Traffic Law but still has a duty to exercise reasonable care to avoid a collision with vehicles that fail to yield the right-of-way. As such, drivers must still determine whether it is safe to continue given the conditions. For example, in Rogers v. Consolidated Edison Co. of N.Y., Inc. , the plaintiff was a passenger in a vehicle that was exiting a parking lot, intending to make a left to travel southbound. The operator of a vehicle traveling in the northbound lane stopped to the left of plaintiff’s vehicle and waved the driver of plaintiff’s vehicle on. Plaintiff’s vehicle crossed the northbound lane and was waved on by the driver of another vehicle in the southbound lane that had also stopped. Plaintiff’s vehicle continued over a double yellow line, turning left onto the southbound lane, when it was struck by defendants’ vehicle which had passed the stopped southbound vehicle on the right side. Plaintiff sued the defendant driver and owner Con Ed for injuries in the accident and the Supreme Court denied their motion summary judgment as against the driver and owner of plaintiff’s vehicle. The Second Department affirmed, finding that the defendants failed to establish that the defendant driver was free from fault in the happening of the accident, or that the alleged negligence of the driver of plaintiff’s vehicle was the sole proximate cause of the accident. Specifically, the Court held that the defendants failed to eliminate triable issues of fact as to whether the defendant driver “exercised reasonable care under the conditions presented, including, among other things, whether he should have stopped or at least lowered the rate of speed of his vehicle before attempting to pass the stopped vehicle, regardless of whether he had the right-of-way as compared to [the driver of Plaintiff’s vehicle.” The Court rejected the argument that the defendant driver exercised reasonable care simply because he was traveling at or under the speed limit. The Rogers case echoes the longstanding rule that New York drivers must exercise reasonable care at all times, even when they have the right-of-way and are driving within the speed limit. Drivers who fail to do so may be found liable even if they are complying with the Vehicle and Traffic Law in all respects. Rogers v. Consolidated Edison Co. of N.Y., Inc. .pdf Download PDF • 165KB Previous Next Contact

News CGL "Leased Worker" Not Ambiguous Not Illusory (PA) February 18, 2016 < Back Share to: In Westfield Insurance Company v. Astra Foods, Inc.,the Superior Court of Pennsylvania decided, on appeal, that a “leased worker” exclusion in an insurance policy was not void as against public policy. In 2009, Castillo Ramos (“Ramos”) was employed by BK Packaging Services, Inc. (“BK”) at a facility operated by Astra Foods, Inc. (“Astra”), when he suffered a severe injury to his hand and arm, while cleaning an exhaust fan. Westfield Insurance had issued both commercial general liability and worker’s compensation policies to Astra. After his injury, Ramos filed a workers compensation claim against Astra. Westfield denied it owed coverage to Ramos as he was not an Astra employee. In 2012, the workers compensation judge agreed and made a specific finding that Ramos was employed by BK and was not a “borrowed employee” of Astra within the meaning of the workers compensation statute. Thus, there was no coverage for Ramos’ injuries under Astra’s Westfield Policy. Ramos then filed civil litigation against Astra. After a June 2013 jury verdict awarded Ramos $763,413 for his injuries, Westfield filed a declaratory judgment action, arguing that the CGL policy did not cover the incident. Specifically, Westfield argued that the “employer’s liability” policy exclusion provision of the CGL Policy applied to the case, barring Astra from obtaining defense and indemnity in the underlying action because Ramos was an Astra “employee” by virtue of the definition of a “leased worker” under the CGL policy. Westfield and Astra filed cross motions for summary judgment and the trial court granted summary judgment to Westfield, denying Astra’s cross-motion. Astra appealed arguing that the court had completely disregarded the finding in the workers compensation case that Ramos was not a “borrowed employee.” Astra noted that Westfield had participated in that proceeding and should be barred from re-litigating the issue. In upholding summary judgment for the insurer, the appellate court disagreed. Specifically, the court scrutinized the definition of “borrowed employee” (at issue in the workers compensation proceeding) and found it to be completely distinct from the definition of a “leased worker” (defined in the Policy). The court stated that “a cursory look at the elements of the doctrine of a borrowed employee and the contractual definition of a leased worker reveals glaring differences between the two,” and concluded that the issue of a leased worker under the CGL Policy was never properly before the workers compensation judge because the CGL Policy was not at issue in that proceeding. Astra also argued that the employer’s liability exclusion provided only illusory coverage. The court rejected this as well. The court reasoned that courts must give plain meaning to the language in unambiguous contracts. Only where a dominant State policy is at issue will a court invalidate such contractual language. Astra did not argue that the employer’s liability exclusion was ambiguous. Rather , it simply argued that in this case, the language foreclosed coverage for claims of employees as defined to include leased employees. Astra did not argue that it purchased the CGL policy principally to insulate itself from personal injuries by workers who were not direct employees. Nor did it allege that the employer’s liability exclusion “operates to foreclose the majority of expected claims” under the CGL Policy. In essence, Astra argued only that the CGL exclusion rendered the policy illusory because of its application to the factual circumstance of the Ramos case. The court held that since Westfield was not required to offer coverage for claims by workers not directly employed by Astra, the company did not specifically purchase the policy for this purpose, and the vast majority of expected claims would be unimpacted by this exclusion, the policy was not illusory. Thanks to Sathima Jones for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Unwitnessed Accident No Defense to Labor Law January 31, 2011 < Back Share to: In Campbell v 111 Chelsea Commerce, L.P., the Appellate Division, Second Department, upheld the lower court's decision to grant plaintiff summary judgment on her §240(1) Labor Law claim. Campbell was injured when the walkboard of the scaffold on which she was working collapsed. She was the only witness to her accident. On appeal, the defendants attempted to raise a question of fact, arguing that because Campbell was the only witness to her accident, the accident could have been caused by any number of reasons. The Second Department rejected this argument because it was based purely on speculation, and the facts were quite clear that the scaffold’s walkboard had collapsed while plaintiff was working on it. Thanks to Alex Niederman for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00482.htm Previous Next Contact

News Lack Of Contract Allows GC To Escape Labor Law Claim (NY) February 2, 2017 < Back Share to: General contractors are virtually always caught in the web of Labor Law construction claims in New York. But recently, the Appellate Division, First Department dealt with an interesting issue: what happens when plaintiff is injured performing work outside of the relevant contract between the GC and the owner? In Ortiz v. IGBY Huntlaw LLC,plaintiff Wilson Ortiz was injured when he fell off a ladder while painting an apartment in Manhattan. He sued the property owner, IGBY Huntlaw LLC, and the general contractor, A.E. Grayson & Co., Inc., under claims negligence, and violations of Labor Law 200, 240(1) and 241(6). Plaintiff was employed as a painter by Uriu, LLC, an entity that was retained directly by the property owner - and there was no contract between Uriu and Grayson. Grayson moved for summary judgment at the end of discovery, relying on the fact that the contract between Grayson and the owner specifically excluded painting from the services to be provided. They also argued that there was no contract between Grayson and plaintiff’s employer and Grayson did not have actual or contractual authority to control the plaintiff’s work. In opposition, the plaintiff submitted a post-deposition affidavit stating that a Grayson supervisor directed plaintiff and his co-workers as to where and how they should perform their work. This affidavit contradicted the testimony of the Grayson witness and the witness from Uriu, both of whom testified that only the Uriu foreman could or would direct the plaintiff’s work. The trial court held that the plaintiff’s affidavit was sufficient to establish a question of fact as to whether Grayson directed, supervised or controlled plaintiff’s activities on the project. The Appellate Division, First Department reversed, and granted Grayson’s motion for summary judgment dismissing all of the plaintiff’s claims. The Court held that because plaintiff’s work was outside the scope of Grayson’s contract with the owner, Grayson had no right to control the work and could not be held liable under Labor Law §§ 240(1) or 241(6). The Court also dismissed the common law negligence and Labor Law 200 claim, because Grayson had no authority to control the work that caused the plaintiff’s injury. Noticeably absent from the Appellate Division’s holding was any consideration for the allegations that Grayson was actually directed the plaintiff’s work. Because Grayson did not have the authority to direct and control the plaintiff, the Court found that it could not be held liable for the plaintiff’s injuries under the Labor Law. Perhaps if plaintiff’s claims that Grayson directed his work had been corroborated by another witness, the court might have reached a different result. But the mere allegation by plaintiff that another party directed his work at the time of his accident - which was contrary to the contractual language - was found insufficient to create a question of fact in the First Department. Thanks to John Collins for his contribution to this post and please write to Mike Bono if you are interested in more information. Previous Next Contact

News Call Your Next Witness - When Standup and Jury Selection Meet (Mike Rabinowitz) September 30, 2021 < Back Share to: How similar are jury selection and performing stand-up comedy? This question has probably occurred to anyone who has ever selected a jury, particularly in a civil case where there is no judicial presence in the room. In this episode of Call Your Next Witness, we have the perfect guest to delve into this topic with us! Mike Rabinowitz is no stranger to being in front of an audience, whether he is selecting a jury, or headlining at a New York City comedy club as a stand-up comic. The similarities between selecting a civil jury and trying to entertain an audience as a comedian are striking, in that you have a captive audience, and you need to use the spoken word to engage them. Mike is uniquely qualified to opine on those similarities, having been a trial attorney AND a standup for several years. In fact, his experience as a trial attorney prompted him to try his hand at standup, which eventually resulted in Mike being a headlining comedian -- which is one of the most exclusive clubs there is. He offers some great jury selection tips as well - worth a listen to all trial attorneys! If you have questions about the podcast, or would like to be a guest, please contact Brian Gibbons or Georgia Coats. Previous Next Contact

News Alleged Disability Insufficient to Establish Discrimination June 17, 2009 < Back Share to: In D’Avilar v. Cerebral Palsy Assn’s of N.Y. State, the plaintiff, a direct care aide to the severely disabled, was injured as the result of a crime. Plaintiff’s injury left her unable to lift more than 10 pounds with her right arm. When plaintiff informed defendant that she required a “reasonable accommodation” as a result of her injury, defendant responded that there could be no reasonable accommodation as lifting 10 pounds was an essential prerequisite of the job. Plaintiff commenced an action under New York City Human Rights Law, claiming she had been discriminated against due to her disability. After discovery was completed, defendant moved for summary judgment based on plaintiff’s social security disability insurance application. In the application, plaintiff swore she was unable to perform the tasks of a direct care aide because among other things she was unable to lift 10 pounds and was unable to sit, stand or walk for extended periods. In plaintiff’s response to defendant’s motion to dismiss, she did not address the additional disabilities claimed in her application. The Supreme Court held that plaintiff failed to raise a triable issue of fact regarding whether she could perform the essential functions of a direct care aide based on the additional disabilities listed in her social security disability insurance application, and her failure to propose any reasonable accommodations for the additional disabilities. The Appellate Division, Second Department affirmed the lower court’s finding. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_04851.htm Previous Next Contact