News Visual Artists Rights Act in Action November 28, 2012 < Back Share to: Enacted in 1990, the Visual Artists Rights Act (“VARA”) bestows upon the living artist “the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation…” (17 USCA § 106(a) (2) ). Cady Noland, the creator of a print on aluminum entitled Cowboys Milking (“the work”) did just that when Noland discovered that Sotheby’s was about to offer the work at auction. Noland disclaimed authorship of the work on account of apparent damage and demanded that Sotheby’s withdraw it from auction. Sotheby’s implored Noland to change her position but to no avail. With Noland’s refusal, Sotheby’s immediately contacted the consignor Marc Jancou Fine Art, LTD, to report that it was withdrawing the print from auction, citing Noland’s disavowal of the work. Bitterly disappointed, Jancou sued Sotheby’s contending that a) Sotheby’s breached its contract to offer the work at auction; and b) Sotheby’s breached its fiduciary duty to Jancou (presumably on the theory that Sotheby’s permitted Noland to inspect the work without Jancou’s knowledge). In Marc Jancou Fine Art, LTD v. Sotheby’s, Inc., New York County Judge Ellen M. Coin, on November 13, 2012, dismissed Jancou’s suit, affirming the vitality of VARA. First, Judge Coin cited to the consignment agreement which gave Sotheby’s the right to withdraw any work from auction when there “is doubt as to its authenticity or attribution,” finding that Noland’s assertion of her right under VARA created more than “doubt” as to attribution - - and thus Sotheby’s was well within its right to withdraw the work. Second, Judge Coin was equally dismissive Jancou’s fiduciary theory, holding: “There is no indication that Sotheby’s withdrawal of the print item was made in bad faith. On the contrary, Sotheby’s has established that there was ample support for its determination that there was doubt as to the print’s attribution, and thus Jancou’s claim for breach of fiduciary duty must be dismissed.” (id.at 246-248) If you would like more information about this post or other VARA issues, please contact Dennis Wade at dwade@wcmlaw.com . Previous Next Contact

News Eastern District of Pennsylvania Acknowledges Kvaerner is Still Good Law (PA) October 1, 2020 < Back Share to: The Eastern District of Pennsylvania in a declaratory judgment action, In re Shelter Structures, Inc., recently reaffirmed that Pennsylvania law typically does not provide coverage under a CGL policy for faulty workmanship. The underlying facts alleged that Shelter violated various building codes in the design and construction of an aircraft hangar. The aircraft hangar collapsed, destroying an aircraft and allegedly causing in excess of $10,000,000 of damages. After the collapse, the owner of the structure filed a lawsuit in the Philadelphia Court of Common Pleas alleging breach of contract, design defects, and construction defects. The insurer subsequently filed this instant DJ action, arguing that the CGL policy did not provide coverage for construction defects as a construction defect does not qualify as an “occurrence”. Citing Kvaerner, the District Court held that, “[u]nder Pennsylvania law, claims for faulty workmanship are not covered by occurrence-based provisions like this one because the term 'accident' implies a degree of fortuity that is not present in a claim for faulty workmanship.” Interestingly, Shelter argued that the Superior Court of Pennsylvania recently created an exception to the Kvaerner rule wherein an “occurrence” could plausibly be alleged with respect to damage to third-party property. We blogged about that decision here. The District Court disagreed, and held that "The Superior Court of Pennsylvania merely held that faulty workmanship does not preclude the finding of an occurrence when third-party property is damaged. An underlying complaint must still allege that the damage was caused by 'an unexpected and undesirable event' that 'falls within the definition of the term ‘occurrence’ under the [policy]' for there to be a duty to defend." For now, Kvaerner continues to remains “good” law, but this is just another example in which courts are being asked to limit its applicability. Thanks to Matt Care for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News It’s Just Part of the Game: Plaintiff Assumes Risk with Collision at Third (NY) April 23, 2021 < Back Share to: In Infant v. Loisaida Inc, plaintiff, a thirteen-year-old, was injured when, as he was fielding at third base in a baseball game, a baserunner slid into the base and collided with his left shin. Infant plaintiff brought suit alleging negligence of the league for his injuries. Defendants argued that the plaintiff assumed the risk, as he had played baseball for seven years. The lower court dismissed the case against the defendants and plaintiff appealed. The Appellate Division, First Department affirmed the lower Court’s decision under the doctrine of assumption of risk, as knew the inherent risks of the game. He was injured in a common play in baseball. The Court rejected plaintiffs' argument that the baserunner's metal cleats created an enhanced or concealed risk that was not assumed. The little league rules that defendant was required to follow permitted the wearing of such cleats, and both the 13–year–old infant plaintiff and his father testified that they observed the baserunner wearing metal cleats. Plaintiffs have not shown that defendant failed to provide safety equipment that would have prevented the inherent risks. Since recovery is precluded by the fact that he assumed the risks inherent in playing baseball, plaintiffs may not recover under a theory of negligent supervision Thanks to Paul Vitale for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Doctor’s Delay In Providing Opposing Affidavit Doesn’t Warrant Threshold Summary Judgment (NY) August 29, 2013 < Back Share to: In Wilson v. Rotondi, the plaintiff was injured in a motor vehicle accident. The defendant moved for summary judgment because the plaintiff did not sustain serious injury as required by the Insurance Law. Plaintiff’s attorney failed to oppose the motion. The motion was initially adjourned to allow plaintiff time to secure a report from the treating neurologist. However, on the adjourn date, plaintiff’s counsel had not obtained the affirmation from the physician to submit to the court. Therefore, the court granted defendant’s motion for summary judgment “on default.” The plaintiff moved to vacate this order and submitted an affidavit from her treating chiropractor. The trial court denied the plaintiff’s motion to vacate finding plaintiff failed to demonstrate a reasonable excuse for the failure to respond or provide a potentially meritorious defense to defendant’s motion. The Second Department reversed the decision. Although the trial court had the discretion to grant the motion on default, the Appellate Division found that plaintiff’s counsel did not exhibit a “pattern of willful neglect.” Rather, the delay was caused by the treating physician who failed to timely provide his report. Therefore, the plaintiff would not be blamed for his client’s doctor’s delay. The Appellate Division then found that the defendant did not establish a prima facie entitlement to summary judgment. This case is a good example of the Appellate Division’s preference to decide cases on the merits. Still, the case does allow attorneys to blame third-parties for a failure to timely oppose a motion. Here, the plaintiff’s counsel neglected the motion and the Appellate Division was unwilling to dismiss the case. Therefore, even if a party fails to timely oppose a motion, an attorney should still request the trial court decide a motion for summary judgment on the merits. Specials thanks to Anne Mulcahy for her contributions to this post. For more information, please contact Paul Clark at pclark@wcmlaw.com . Previous Next Contact

News No Horseplay On The Part Of Defendant-Third Circuit Affirms Grant Of Defendant’s Motion For Summary Judgment July 28, 2023 < Back Share to: In a recent opinion handed down by the United States Court of Appeals, Third Circuit, for Garcia v. Mountain Creek Riding Stable Inc., a defendant stable owner, who provided horses and guides for trail rides, who had been sued by a plaintiff who was thrown from horseback while taking part in a trail ride, had its motion for summary judgment affirmed after the plaintiff appealed the district court’s grant. The court came to its decision by applying Pennsylvania law. The evidence established that the plaintiff Garcia, who did not speak English, was asked to change into riding boots provided by the defendant Stable. Garcia v. Mountain Creek Riding Stable Inc., No. 22-1700, 2023 WL 4418230, at *1 (3d Cir. July 10, 2023). While changing into the boots, the defendant Stable provided riding instructions to the patrons. Id. Although neither plaintiff Garcia, nor her husband, spoke English, Garcia’s son was translating for her on that day. Id. Garcia’s son, however, did not provide translation of the riding instructions because the plaintiff was busy with her boots and distracted. Id. Plaintiff Garcia provided testimony that she had been in a hurry because she was worried that she would be left behind. Id. The plaintiff’s husband, who had ridden a horse before instead gave Garcia brief instruction, rather than Garcia receiving translated instruction from the employees of the defendant Stable. Further, during the period plaintiff Garcia changed into the boots, her husband signed the waiver on her behalf, which had been provided by the defendant Stable. Id. The waiver, as well as signage on the property “informed patrons that they “assume[d] full responsibility for...risks including, but not limited to, the negligence of” Mountain Creek.” Id. There had also been testimony that the senior trail guide that she was concerned about plaintiff Garcia’s “riding ability and safety, particularly because she did not speak English” however multiple witnesses stated that neither of the two trail guides rode behind plaintiff Garcia. Id. At some point during the ride, plaintiff Garcia’s horse went off trail, and although Garcia testified that at least once she tried to stop the horse by pulling on its reins, she was thrown from the horse after it reared up on its hind legs. Id. Subsequently, plaintiff Garcia brought an action alleging that the defendant Stable had been negligent by failing to prevent the harm. Id. The defendant Stable then filed a motion for summary judgment, arguing that Garcia had not provided “sufficient evidence showing that Mountain Creek failed to prevent the harm, as required under Pennsylvania law.” In reaching its decision to affirm the lower court’s judgment, the Third Circuit applied Pennsylvania law, which “follows the Restatement (Second) of Torts, §§ 509 and 518, which identify the proof required to hold the possessor of a domesticated animal, such as a horse, liable for damages. Id. *2. Because there was no evidence showing that the horse had dangerous propensities, the court applied §518, rather than §509, which would apply in a circumstance when a domesticated animal is known to have dangerous propensities. Id. Under §518, to establish liability when a plaintiff does not assert that the possessor of the animal caused the animal to do harm, the plaintiff must instead show that the possessor was “negligent in failing to prevent the harm.” Id. plaintiff Garcia alleged five ways in which the defendant Stable had been negligent: that the senior guide, despite the testimony of having been concerned for Garcia’s riding ability, allowed Garcia to ride the horse, that the guides on the trail did not notice that Garcia was incorrectly holding the saddle instead of the reins, that the guides did not tell Garcia to pull the reins instead of holding onto the saddle improperly, that Garcia did not receive instructions in Spanish, and that the guides were in front of Garcia on the trail and thus could not monitor her. Id. The Third Circuit based its decision on the following conclusions: plaintiff Garcia acknowledged that the defendant Stable had provided instructions before the ride, and because Garcia’s son who had been her translator that day did not translate the instructions and instead Garcia’s husband gave her instruction, and because Garcia “demonstrated that she understood at least some of the instructions for controlling the horse as demonstrated by the fact that she knew to pull the reins back to stop the horse on at least one occasion.” Id. Further plaintiff Garcia “presented no evidence that Mountain Creek engaged in any conduct that caused the horse to begin running and presented no evidence that “the horse was unsafe for a novice rider or that the position of the guides would have impacted the horse’s behavior,” id., Thus the Third Circuit ruled that plaintiff Garcia had “not provided evidence upon which a reasonable juror could find” the defendant Stable to be negligent under Pennsylvania law. Id. This ruling serves as a reminder of the basic requirement to support a motion for summary judgment in Pennsylvania, or to refute one on appeal. Simply put, a motion for summary judgment cannot have material facts in dispute which would require it to go before a jury. Absent those disputed material facts, a court a litigant runs the risk of receiving the same judgment as plaintiff Garcia. Thanks to Ryan Hunsicker for his contribution to this article. Should you have any questions, contact Tom Bracken. Previous Next Contact

News Definition of “Premises” Defines Extent of Coverage (PA) October 4, 2018 < Back Share to: A Pennsylvania federal court recently decided whether a landlord’s insurer can shift a shopping center’s responsibility in a slip and fall case to a tenant’s insurer, in Liberty Mutual Insurance Co. v. Selective Insurance Co. of America, case number 2:16-cv-00759, U.S. District Court for the Eastern District of Pennsylvania. In this case, the plaintiff was injured while tripping on an allegedly defective sidewalk outside of Business 21 Publishing LLC, a tenant of Stoney Creek Center. The plaintiff, an employee of Business 21, ultimately sued Stoney Creek Center and received a confidential settlement. Stoney Creek Center’s insurer sought reimbursement from Business 21’s insurer for costs associated with defense and settlement of the suit, believing it was an additional insured under its policy. Business 21 held a liability policy that extended additional insured status to companies that owned and operated the shopping center for claims of bodily injury involving premises owned or used by Business 21. Stoney Creek Center believed it was an additional insured under Business 21’s policy, taking the position that “premises” included both internal offices and outside common areas. In deciding whether additional Stoney Creek Center is owed insured status, the court turned its focus on the meaning of the word “premises” as used in the additional insured endorsement of Business 21’s policy. The judge decided that Business 21’s lease agreement with Stoney Creek Center defines the word “premises” and not the policy. The judge ruled that the terms of the lease agreement make a clear distinction between Business 21’s internal office space and its right to use the outside common areas, demonstrating that Business 21 intended for “premises” to solely mean its internal offices and not outside common areas such as the walkways and parking lot, thus determining that there was no additional insured coverage owed. Thanks to Chelsea Rendelman for her contribution to this post. Previous Next Contact

News Sidewalk Similar in Color to Lower Sidewalk = Dangerous Condition? (PA) April 6, 2019 < Back Share to: In Slappy-Sutton, et al. v. Speedway LLC, the District Court for the Eastern District of Pennsylvania entered summary judgment in favor of defendant, Speedway LLC and the plaintiffs appealed. The Third Circuit reversed the district court’s entry of summary judgment finding that there were genuine disputes of material fact. Plaintiff, Slappy-Sutton went inside Speedway convenience store to purchase snacks. After exiting the store, he crossed the sidewalk, but failed to perceive the drop-down to the ground below, and he fell. According to plaintiff, the end of the sidewalk was imperceptible due to a one-foot-wide concrete apron that was nearly identical in color to and abutted the sidewalk. Plaintiff alleged suffered physical, economical, and emotional damages in state court. Following discovery, the district court granted Speedway’s motion for summary judgment, finding that the similarity in color between the sidewalk and concrete apron did not create a dangerous condition, and that, if it did create a dangerous condition, it was open and obvious, such that Speedway was not liable for Plaintiff’s injuries. Plaintiff appealed arguing that a dispute of material fact exists as to whether the sidewalk was a dangerous condition, and, if it was, whether it was open and obvious. Based on the Third Circuit’s review of the record, the court agreed with the plaintiff. For example, plaintiff testified that, in his experience, a sidewalk’s end is usually perceptible because it either clearly contrasts with the pavement below or is marked with paint, and that he had never seen a sidewalk like Speedway’s. Also, plaintiff was prepared to introduce expert testimony to support his contention that the sidewalk’s condition was dangerous if the case went to trial. According to the Court, reasonable minds could differ on the issue of whether the sidewalk was dangerous and whether the condition was open and obvious; thus this was a question of fact for the jury. Thanks to Melisa Buchowiec for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Piano Lawsuit Dismissed - Music to the Defense's Ears (NJ) April 2, 2021 < Back Share to: What do you do when the very experienced piano movers that you hired are unable to move the piano on your property? In a recent New Jersey case, the defendants were faced with that dilemma after the plaintiff was unsuccessful at moving a piano down the home’s stairwell. In Barbato v. Gallagher, the defendant homeowners noted that the piano had been moved into the home by utilizing the back deck, and the plaintiff opted to try this method himself. The plaintiff and his coworkers reported to the back deck but realized they could not move the piano due to the presence of a grill stand on the deck. The plaintiff then opted to stand on the grill stand while moving the piano. Not surprisingly, this resulted in an injury when the grill stand separated from the main portion of the deck. The plaintiff fell, and a portion of the piano fell on top of him. The facts of the case revealed that the grill stand was in place when the defendants purchased the home, and a home inspection did not reveal any issues with the stand. However, plaintiff’s expert found issues with the screws in the grill stand and corrosion/deterioration. Defendants moved for summary judgment, arguing that they did not owe the plaintiff a duty of care because he was hired as a professional piano mover, and the defendants did not supervise him or oversee his work. Additionally, the defendants argued that they had no actual or constructive notice of any issues with the grill stand. The trial court found that the defendants did not owe the plaintiff a duty of care and dismissed the complaint. The Appellate Court upheld the dismissal but disagreed with the trial court’s reasoning. While finding that the defendants did owe the plaintiff a duty of care, the Court found that there was no evidence of actual or constructive notice of a dangerous condition on the property. Accordingly, defendants did not breach their duty of care. This case highlights the importance of establishing the lack of any actual or constructive notice of a dangerous condition on a defendant's property. Please contact Heather Aquino with any questions. Previous Next Contact

News New Jersey Supreme Court Finds Violation Of Free Speech By Banning Giant Rat Balloon At Protest. February 17, 2009 < Back Share to: In State v. DeAngelo, the unanimous Court found that a Lawrence Township ordinance which prohibited " banners, pennants, streamers...portable signs, balloons or other inflated signs ( except grand opening signs)" was unduly restrictive of free speech and expression. The case stemmed from IBEW Local 269 being fined for using a giant inflatable rat to protest a Gold's Gym being built without union labor. The Court found the protest protected by state and federal constitutions, as to both labor and content. http://lawlibrary.rutgers.edu/courts/supreme/a-73-07.opn.html Previous Next Contact

News City Sidewalks, Defective Sidewalks, Dressed in Holiday Style (NY) December 23, 2019 < Back Share to: In Rizzo v. City of New York, the plaintiff was injured when she tripped and fell on the sidewalk in front of a residence. The plaintiff commenced an action to recover damages for personal injuries against the homeowners and the City of New York. In response, the homeowners moved for summary judgment seeking to dismiss the complaint. However, their motion was ultimately denied by the Bronx County Supreme Court. In their motion for summary judgment, the homeowners alleged that they were exempt from the statutory liability imposed by the Administrative Code of the City of New York §7-210(b) because their property was an owner-occupied, two-family residence and there was no evidence showing that they made special use of the area. Further, the homeowners also made a prima facie showing that they did not cause or create the alleged defect. The homeowners supported their claim by submitting deposition testimony where they denied that they attempted to repair the area before the accident. Additionally, the homeowners submitted testimony from the City of New York's witness who attested that the property records from two years prior and the accident date were searched and no permits for sidewall repairs were found. In opposition, the plaintiff raised a triable issue of fact when she provided photographic evidence that there was a patched area on the portion of the sidewalk where she allegedly fell. Further, the plaintiff provided evidence that the City did not undertake any repairs until after the plaintiff's accident. The Appellate Division, First Department held that the defendants' denials that they repaired the sidewalk before the accident presented a credibility issue that could not be resolved on a motion for summary judgment. This decision serves as an important reminder that credibility issues raise a triable issue of fact and may defeat a motion for summary judgement. Thanks to Caitlin Larke for her contribution to this post. Please email Colleen E. Hayes with any questions Previous Next Contact

News Can't Use Facebook To Serve Process June 13, 2012 < Back Share to: Last week we posted that NY state courts are permitting discovery of Facebook accounts in certain contexts. This week, a federal court judge in the Southern District of New York rejected a request to use Facebook as an alternative means of serving process on a hard to find third-party defendant. In Fortunato v. Chase Bank, Chase wanted to use Facebook to locate and serve the third-party defendant who had a history of providing inaccurate addresses. Chase argued that this history prevented its investigators from locating the sought after third-party defendant through normal channels. Although the judge agreed that service by normal means was impractical, he would not allow Chase to use Facebook to locate and serve the third-party defendant stating that Chase had not set forth any facts that would give the court some degree of certainty that the Facebook profile their investigator found was in fact maintained by the third-party defendant. The court, instead, allowed service by publication in four local newspapers to cover areas where the third-party defendant had listed addresses. If you have any questions or comments about this post, please email Nicole at nbrown@wcmlaw.com . Fortunato v. Chase Bank USA Previous Next Contact

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