News NJ Tort Claims Act Defeats Contractor's Catastrophic Injury Claim February 16, 2017 < Back Share to: Plaintiff William Muha became paralyzed from the waist down when he fell off a ladder after accepting a job from Fast Signs to install signs on a column at Kean University. Muha filed a worker’s compensation claim against FastSigns and a notice of claim against the University. The worker’s compensation Judge dismissed plaintiff’s petition holding that plaintiff was an independent contractor and not an employee. The case was arbitrated resulting in a $6 million award with 50% of the comparative fault attributed to plaintiff. The defendants filed a trial de novo and moved for summary judgment on plaintiff’s claims. The Trial Court granted defendants’ motions. Plaintiff appealed. On February 8, 2017, the Appellate Division affirmed summary judgment in favor of defendants. The facts in Muha v. Kean University are not complex: The first day of the sign installation was uneventful. Although plaintiff requested a lift, the parties eventually settled on a 40’ foot ladder provided by one of the defendants. Plaintiff’s father held the ladder for some of the installation. On Day Two, the ladder plaintiff used on the day before was not available. Plaintiff did not tell the University that he needed a ladder. Instead, plaintiff decided to borrow his father’s ladder. But this time his father did not help plaintiff. As Muha was cleaning the column to install the sign, the ladder “kicked out” and began leaning toward the left. Plaintiff fell, hitting the ground and became paralyzed from the waist down. The Court held that plaintiff failed to establish a prima facie case against the University under the Tort Claims Act (“TCA”). See N.J.S.A. § 59:4-2. The Act provides that a public entity can be liable for an injury caused by a condition of its property if plaintiff establishes a “dangerous condition” existed on the property that proximately caused the injury and that the injury was “foreseeable.” In this case, plaintiff was using his father’s ladder –not one provided by the University. Therefore, the defendant did not create a dangerous condition as required by the statute. Also, the Court noted that Plaintiff did not argue that the building or the column, where the signs were to be hung, was a dangerous condition. Finally, plaintiff’s decision not to advise the University of the issue with the ladder and to solve the problem himself by using his father’s ladder, eliminated plaintiff’s ability to prove actual or constructive notice. The Court also provided a helpful analysis of whether the plaintiff was an independent contractor or an employee. “FastSigns did not retain control of the manner or means of the work that was to be performed. FastSigns was not present at the location on the day of the accident, did not provide plaintiff with the tools needed to install the vinyl signs other than the actual signs themselves, and … plaintiff [and not FastSigns had] direct communication with Kean [the client].” The Court also determined that plaintiff was not “incompetent,” in other words he was experienced with sign installation and skilled using a ladder at least three times per week. The Court also did not find that the sign installation was an inherently dangerous job or “nuisance per se.” Therefore, the Court concluded plaintiff was an independent contractor. The Court’s practical approach is notable: “[R]outine precautions such as someone hold the ladder could have decreased plaintiff’s chances of injury.” Plaintiff’s serious injuries did not override the fact-sensitive analysis of the employment relationship and the events leading up to the accident. Thanks to Ann Marie Murzin for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News NY Municipalities Slip Closer to Insolvency With Court Assistance December 22, 2010 < Back Share to: Dale San Marco was walking through a Village of Mt. Kisco-owned parking lot on her way to work in broad daylight one wintry Saturday morning in 2005, when she slipped on black ice. The source of the ice seemed to be a pile of snow that the village had created when plowing the parking lot several days earlier. The claim is that the snow melted, causing water to run-off and then re-freeze, as it is wont to do in February. The village had salted the lot one day before San Marco's accident, but "did not employ a work crew on Saturdays and Sundays to monitor the parking lot...." The State of New York, like all states, was cloaked with sovereign immunity at common law and could not be sued. New York now permits citizens to bring actions against municipalities, but such lawsuits are usually limited to cases where the municipality has received prior written notice of the hazard. Mt. Kisco has such a law and it says that the notice requirement applies to claims based upon the "accumulation of snow and ice." But the NY Court of Appeals (our highest court) has ruled in San Marco v. Village/Town of Mount Kisco (NY Court of Appeals, slip opinion No. 223, Dec. 16, 2010) that the plaintiff may continue with her lawsuit even though the municipality did not have prior written notice of the black ice that Saturday morning. Chief Judge Lippman, writing for the court, protests that "We do not hereby create a new burden on municipalities to remove all snow off-premises in order to avoid liability..." But short of having a work crew on duty 24/7 or, in fact, carting the snow off site, isn't that just what this ruling imposes on the municipalities of NY that are already careening toward bankruptcy under the burden of the benefit packages already paid to the work crews that now need to work overtime and sit and watch ice form on the ground 24/7. If you have any questions about this post, please contact John Mulcahy at JMulcahy@wcmlaw.com . Previous Next Contact

News Comparative Negligence Defense in Play Even When Plaintiff Obtains Summary Judgment on Liability November 3, 2023 < Back Share to: In Jones v Haifeng Zuo , the Appellate Division, Second Department recently addressed competing liability claims in an automobile accident case. In that case, the defendant was having trouble seeing oncoming traffic after stopping at a stop sign at an intersection. He inched his vehicle forward to look for cars and collided with the plaintiff’s vehicle. Plaintiff moved for summary judgement on the issue of liability, also seeking a dismissal of defendant’s comparative liability claim, based on Vehicle and Traffic Law § 1142(a). That section provides that “every driver of a vehicle approaching a stop sign shall stop . . . and after having stopped shall yield the right of way to any vehicle which has entered the intersection from another highway, or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection." The trial court granted the motion in its entirety. The Second Department first affirmed the trial court’s grant of summary judgment as to the defendant’s liability, finding that plaintiff submitted an affidavit establishing that the defendant failed to yield the right-of-way after stopping at the stop sign and collided with plaintiff’s vehicle. However, the Court also reversed the trial court’s dismissal of defendant’s comparative negligence defense. In so holding, the Court recognized that a driver who has the right-of-way still has a duty to “exercise reasonable care to avoid a collision [and] to see what there is to be seen through the proper use of his or her senses." The defendant’s Affidavit emphasized that he remained in the same location for 10-20 seconds after moving beyond the stop sign so there were triable issues of fact as to whether plaintiff holds some liability for failing to reasonably avoid the accident. The takeaway from Jones is that automobile defendants should pursue a comparative negligence defense even when they have potential liability and plaintiff will likely prevail at the summary judgement stage. Pressing and preserving the defense can weaken a plaintiff’s damages claim and provide stronger settlement leverage. Jones v. Haifeng Zuo .pdf Download PDF • 1.24MB Previous Next Alexander Rabhan Alexander Rabhan Senior Associate +1 212 267 1900 arabhan@wcmlaw.com Contact

News Court Has Authority to Determine if Undefined Term in Contract is Ambiguous February 2, 2009 < Back Share to: On January 6, 2009, the New York Supreme Court granted a plaintiff’s motion for summary judgment in a contract dispute that arose over the term “visitor.” The defendant agreed to advertise on the plaintiff’s website provided the plaintiff had 36,000 visitors to the site. The plaintiff met this number, although the “visitors” may have included repeated users of the site. The defendant argued that the term “visitor” in the contract, referred to “unique visitors” and not repeat users. The court disagreed noting that the determination of whether a term in a contract is ambiguous is a question of law. Although the term visitor was not defined in the contract, the court believed that the plain meaning was unambiguous. Accordingly, the court granted plaintiff’s motion. Thanks to Bill Kirrane for his contribution on this post. http://decisions.courts.state.ny.us/fcas/FCAS_docs/2009JAN/3001028302008001SCIV.pdf Previous Next Contact

News The Holy Spirit Comes in Pennsylvania. November 29, 2011 < Back Share to: Last year we reported on the case of Barrick v. Holy Spirit. In Barrick, the Pennsylvania Superior Court was faced with the question of whether correspondence between an attorney and her retained expert (which discussed case strategy) was discoverable. The Superior Court ruled that attorney/expert correspondence was discoverable under Pa.R.C.P. 4003.5(b) that requires an expert to disclose “the substance of the facts and opinions to which the expert is expected to testify” as well as “the grounds for each opinion.” This disclosure “right”, reasoned the Court, trumped the attorney work-product privilege. A howl of protest immediately ensued and the Superior Court agreed to revisit the issue. In a newly issued decision, the Superior Court has reversed itself. The Court wrote that disclosure of “correspondence between an opposing party’s attorney and the expert witness retained by that party falls outside the express language of Pa.R.C.P. 4003.5(a)(1).” The Court further wrote that because “correspondence between Appellants’ counsel and Dr. Green [the expert] constitutes attorney work product pursuant to Pa.R.C.P. 4003.3, we conclude that it is not discoverable under the Pennsylvania Rules of Civil Procedure.” The bottom line is that attorneys can talk to their experts in peace, free from fear that their communications will become discoverable. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Jury Allowed to Consider Amount of Medicare Payments - not Amount of Provider Bills (NJ) October 14, 2016 < Back Share to: One of the battles that rages in every personal injury cases is over the "boardables" - which includes the amount of medical expenses that a plaintiff can present to a jury as part of their damage claim. As anyone who has reviewed an Explanation of Benefits form knows, there is a dramatic difference between the amount a medical provider bills and the amount they are reimbursed by a medical insurer or Medicaid. So which of those amounts should be presented to a jury? That issue was at the forefront of Charles v. Thomas, M.D., et al., which involved a cardiopulmonary arrest following a routine ENT procedure which lead to a variety of debilitating conditions. Prior to trial, the defendants moved to limit the plaintiff’s presentation on damages to the amount Medicare actually paid for the plaintiff’s medical treatment – versus the amount the providers billed – arguing that the significantly lower figure properly represented the plaintiff’s incurred loss. The plaintiff opposed the defendants’ motion on the theory that the amount the medical providers billed reflected the incurred loss and should be admissible to “more fully inform the jury as to the extent of Plaintiff’s injuries resulting from his heartbreaking ordeal.” In siding with the defense, the judge distinguished between insurance payments, which would be deducted from any award consistent with New Jersey’s collateral source rule, and Medicare payments, costs which plaintiffs are required to reimburse. Citing in part to the "made whole" principle, the court determined that the “incurred loss” was the amount the plaintiff actually owed Medicare for his treatment, and the plaintiff was limited to presenting only that figure in support of his damages claim. Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Unfamiliarity with Electronic Filing is No Excuse (NJ) June 6, 2019 < Back Share to: In Cuomo v. TSI Ridgewood, LLC dba New York Sports Club, the plaintiff sued New York Sports Club after tripping over an exercise bench, alleging fractures in her left wrist and left elbow, cartilage tears in her left knee, and herniations in her cervical spine. After the parties exchanged liability expert reports, with the plaintiff alleging the subject exercise bench was out-of-place and defendant alleging the opposite, discovery ended. The parties appeared for mandatory, “non-binding” arbitration. Although defendant sought to vacate the resulting arbitration award, the court held its efforts did not substantially comply with mandatory requirements – rendering the award “binding.” According to R. 4:21A-1, essentially all tort actions arising out of automobile negligence as well as all personal injury claims (except professional malpractice and productions liability actions) proceed to mandatory, non-binding arbitration at the close of discovery. Although the arbitration award is “non-binding,” the decision is final and enforceable as a judgment if (1) a party does not petition the court within thirty (30) days for a trial de novo and (2) pay the appropriate trial de novo fee. See R. 4:21A-6; N.J.S.A. 2A:23A-26. If a party fails to heed this procedural requirement, the court “shall, upon motion of any of the parties, confirm the arbitration decision.” Ibid. In Cuomo, the plaintiff asserted a personal injury claim. Pursuant to R. 4:21A-1, the case was referred to mandatory, non-binding arbitration. The arbitrator entered the arbitration award on January 31, 2018, categorizing plaintiff’s damages as multiple fractures and herniations, with alleged specials including lost wages and out-of-pocket expenses. The arbitrator entered a gross arbitration award of $250,000 – reduced to a net award of $200,000 due to plaintiff’s 20% comparative negligence. According to the rule, the defendant had thirty days (until March 2, 2018) to file a trial de novo demand and pay the requisite fee. Defendant first attempted to file the demand by serving the clerk of the Civil Division by courier service on February 13, 2018 with a physical check. The clerk rejected the demand and the check on February 21, 2018 because “[a]ll…documents filed by an attorney or law firm must be done electronically through eCourts” and indicated the documents would be marked "'received' but not 'filed[.]'” Although defendant next filed the demand electronically via eCourts on February 23, 2018, the clerk responded, “Payment Missing.” No further action was taken. After thirty (30) days expired, the plaintiff filed a motion to confirm the arbitration award and enter judgment, while defendant sought leave to file the demand for trial de novo. The trial court ruled for the plaintiff and entered judgment in the amount of the arbitration award. Defendant appealed. The Appellate Division affirmed, noting (1) all attorneys were required to have an Judiciary Account Charge System (JACS) account to electronically file documents that required a fee as of May 17, 2017; (2) all attorneys were required to file all documents electronically via eCourts (in the venue) as of October 16, 2017; and (3) defendant did not substantially comply with the trial de novo rule. As a result, clerical errors do not warrant relaxation of the thirty-day trial de novo period. Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Insured or Underinsured? That Is The Question January 24, 2018 < Back Share to: A Pennsylvania Court recently ruled that a plaintiff-insured was not entitled to UIM coverage since the tortfeasor-driver was not underinsured for purposes of UIM coverage. In Tenbus v. Progressive, the plaintiff-insured was involved in a motor vehicle accident. At the time of the accident, the other driver had insurance coverage totaling $125,000. The plaintiff-insured also was insured under her own policy, which included UIM benefits. The plaintiff-insured subsequently sued the other driver, and the case proceeded to arbitration. An arbitration award was entered for $125,000, i.e. the amount of the other driver’s insurance coverage. The plaintiff-insured then attempted to seek UIM benefits from her own insurance policy. The defendant-insurer countered that there was no UIM coverage available under the policy, as the other driver was not underinsured as that term was defined by the policy or relevant case law. Specifically, the defendant-insurer argued that the other driver could not be deemed underinsured, since the coverage provided under the other driver’s policy was the exact amount of the plaintiff’s damages / arbitration award. In response to this argument, the plaintiff-insured attempted to establish that the other driver was underinsured by introducing new evidence of future damages, including future medical expenses. The court disagreed with the plaintiff-insured’s position. Ultimately, the court concluded that since the plaintiff-insured had not raised claims for future damages during the arbitration, (which she was entitled to do), her failure to do so collaterally estopped her from pressing this argument in her subsequent litigation for UIM benefits. Therefore, the court concluded she was not entitled to UIM benefits under her policy, as the other driver was not underinsured. Consequently, this case offers support for the contention that an insured may not be entitled to recover UIM benefits in a subsequent litigation, if the insured failed to establish that her damages exceeded the tortfeasor’s insurance coverage limits – demonstrating that the other driver was, in fact, underinsured. Thanks to Colleen Hayes for her contribution to this post.   Previous Next Contact

News NJ: Insurance "Step Down" Provision Upheld November 18, 2009 < Back Share to: A clause in an insurance policy that reduced the available policy limit for a truck driver who was not named within the policy’s “Schedule of Reported Drivers” from $500,000 to the minimal statutory amount of $15,000 was upheld where the policy language was clear and unambiguous. Although the Court commented upon the substantial injuries sustained by the plaintiff who jumped from a moving train when it collided with a Freightliner truck, it concluded that sympathy for the plaintiff could not override the clear and unambiguous policy term. Finding the policy term clear, the court held the policy holder to the term as written despite an argument that he may not have understood it due to a language difficulties. Additionally, although the plaintiff argued that such a “step-down” clause should be void as against public policy, the court disagreed. Specifically, the court affirmed the insurer’s “legitimate underwriting concern” to limit its exposure when a large commercial truck is operated by a driver who it had not investigated, rated or approved. Moreover, the Court noted that New Jersey’s Supreme Court has upheld similar provisions. See Ford v. National Independent Truckers Insurance Co., 2009 WL 3762423 (App.Div. 2009)(unreported decision) www.judiciary.state.nj.us/opinions/a0167-08.pdf If you would like more information regarding this post, please email denise at dricci@wcmlaw.com Previous Next Contact

News No Merit to Architectural Firm’s Argument March 22, 2019 < Back Share to: The Pennsylvania Superior Court recently analyzed when a certificate of merit is required for a joinder complaint. In Kelly Systems, Inc. v. Leonard S. Fiore, Inc. , Leonard S. Fiore, Inc. was hired to construct a building “core and shell” and, in turn, hired a firm called OGP Architects, LLP to design the building. Fiore also subcontracted Kelly Systems, Inc. to install exterior wall panels. During construction, Kelly Systems submitted a change order to Fiore contending that OGP provided an impossible-to-construct design of the wall paneling and provided its own field solution, which would cost an additional $225,000. Fiore rejected the change order, and after Kelly Systems asked it to reconsider, never responded. Kelly Systems went ahead with its own field solution and later sued Fiore for the additional costs, arguing that the designs it was provided with necessitated the additional monies. Subsequently, Fiore filed a joinder complaint adding OGP. In response, OGP sought a judgment of non pros for Fiore’s failure to attach a certificate of merit, which is ordinarily required for professional liability claims in Pennsylvania. Fiore countered by filing a motion for a determination that it was not required to do so, which the trial court granted. On appeal, the issue was whether the allegations in Fiore’s joinder complaint regarding the designs arose from the same “acts of negligence”. Pennsylvania Rule of Civil Procedure 1042.3(a) provides that: “In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party.” However, under Rule 1042.3(c)(2), a defendant who joins a licensed professional to an action is not required to file a certificate of merit unless the joinder is based on “acts of negligence that are unrelated to the acts of negligence that are the basis for” the plaintiff’s claims. Here, the court concluded that since the joinder complaint was based on the same allegations of negligence as the original complaint, no certificate of merit was needed. Accordingly, this case confirms the circumstances under which a certificate of merit is needed in connection with a joinder complaint. Thanks to Bob Turchick for his contribution to this post. Please email Colleen Hayes with any questions at chayes@wcmlaw.com Previous Next Contact

News Prosecutors Pursuing Criminal Charges Against Grossly Negligent Builders (NY) October 20, 2016 < Back Share to: A recent Wall Street Journal Article details the Manhattan District Attorney’s push to bring criminal charges against contractors who have sacrificed worker safety for profits. The recent Manhattan construction boom has, according to Manhattan District Attorney Cyrus Vance Jr., created incentives for builders to cut corners. According to the New York Department of Buildings there were 92 million square feet of new construction in 2015, up from 19 million in 2011. During that same period, accidents more than tripled, and there has been five construction-related deaths so far this year, compared with twelve last year, and eight in 2014. The article notes the recent manslaughter conviction of general-contracting firm Harco Construction, LLC for the death of Carlos Moncayo, a worker who was a worked killed in a 2015 trench collapse at a Meatpacking District construction site. The matter is under appeal and the attorney for Harco believes it will be overturned. Past attempts to bring manslaughter charges in construction accidents have been largely unsuccessful. The construction industry has to battle a negative public perception regarding worker safety. However, construction involves inherently dangerous work. The article noted that the nature of the industry itself often makes it difficult to determine who, if anyone, is at fault. The intertwined responsibilities of companies, contractors, subcontractors and workers further complicate this determination. Despite the recent Harco conviction, the impact of the District Attorney’s office's push for criminal charges remains to be seen. Given the dangerous nature of construction, accidents are an unfortunate but natural consequence. Those incidents and resulting litigation have largely remained in the civil, not criminal, realm. Prosecutor Diana Florence, whose recent efforts were discussed in the article, is pursuing more construction cases, but carefully choosing them. Despite this caution, these efforts symbolize a changing dynamic with important consequences for the construction industry. The District Attorney’s Office efforts, however well-intentioned, could set a dangerous precedent and must be limited to only those cases where the evidence, not the tragedy, demands it. Thanks to Justin Pomerantz for his contribution to this post. Please email Brian Gibbons with any questions.     Previous Next Contact

News NYC Subways and Air Conditioning June 14, 2012 < Back Share to: Every New Yorker who uses the subway on a regular basis has had the unpleasant experience of riding a train on hot day with no air conditioning. In Mahautiere v. NYC Transit Authority, a case of first impression in the Supreme Court, Queens County, the plaintiff fainted in a subway cart and fractured her ankle. The plaintiff commenced a lawsuit against the NYC Transit authority, alleging that the Transit Authority was negligent in failing to "provide a reasonably expected level of air conditioning" while the train was stopped between two stations. The Transit Authority moved for summary judgment, arguing that they did not owe the plaintiff a duty to provide air conditioning, yet did so and it was working properly. The court granted the Transit Authority's motion, holding that even if the agency owed the plaintiff a duty to provide a "reasonably expected level of air conditioning" and breached it, plaintiff did not provide sufficient evidence to support her contention that insufficient air conditioning caused her to fall and fracture her ankle. This case was an opportunity for the court to address two issues that affect millions of New Yorkers on a daily basis. First, does the Transit Authority have a duty to provide a "reasonably expected level of air conditioning" in the subway? Second, what is a "reasonably expected level of air conditioning?" It will be very interesting to see what the Second Department does when this case comes up on appeal. Special thanks to Ed Lomena for his contributions to this post. For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .     Previous Next Contact