News PA Supreme Court Confirms Third-Party Contractor Has Duty to Warn of Obvious Dangers August 4, 2023 < Back Share to: In a May 2023 opinion, the Supreme Court of Pennsylvania potentially expanded contractor liability to third parties injured by construction defects. See Brown v. City of Oil City, 294 A.3d 413 (Pa. 2023). In 2011, due to weathering and aging, the condition of Oil City Library’s concreate entrance stairs significantly declined since their construction in 1904. Id at 419. As a result, Oil City (“City”) contracted with Harlod Best and Struxures, LLC (collectively “contractors”) to develop plans to reconstruct the stairs and oversee the implementation of those plans. Id. The actual reconstruction work of removing and replacing the stairs was performed by subcontractor Fred Burns Inc., pursuant to a contract with the City and Contractors. Id. Shortly after the stairs were installed, the City began receiving reports about imperfections in the concrete surface, which also began to degrade; these imperfections prompted the City to inform Struxures that it considered the stairs to be “dangerous and defective.” Id. Over the years, the condition of the stairs continued to worsen, neither the City nor Contractors made repairs. Id. In November 2015, David and Kathryn Brown was exiting the library; Kathryn tripped and fell on one of the deteriorated sections, and struck her head, resulting in a fatal head injury. David brought a lawsuit against the City, Contractors, and Fred Burn’s Inc. Id. With respect to the Contractors and Fred Burns, Brown argued that their work on the steps created a dangerous condition and an unreasonable risk of harm. Id. At the trial level, the Contractors filed a successful motion for summary judgement based on the argument that § 385 of the Restatement (second) of Torts provides no duty to out of possession contractors to third parties harmed by conditions of their work done on behalf of another. Id. at 420. However, on appeal, the Supreme Court of Pennsylvania found that nothing in the Restatement that would exempt an out-of-possession contractor from liability when it makes a repair to a chattel that it reasonably should foresee would render it dangerous to a third party who uses it, even when its dangerous condition is obvious. Id at 430. Further, the Court found that a contractor has a duty to inform a third-party user of a dangerous condition when the contractor “has no reason to believe the third party will realize the dangerous condition which the contractor created.” Id. The Court found that a contractor who has created a dangerous condition through work performed for a possessor of land may be liable to all persons injured by the dangerous condition, even if that condition is obvious or apparent in nature. Id at 435. The Court reversed the order for Summary Judgment and remanded the case to the trial court. Id. While this case does not provide a holding that these contractors should be held liable, the Court did hold that these contractors, and those in similar positions could be held liable in these kinds of situations. It is early to tell if this ruling will spark changes in plaintiff’s decisions on what parties to name in a lawsuit. Thanks to Hannah Garber for her contribution to this article. Should you have any question, contact Matthew Care. Previous Next Contact

News WCM Wins Dismissal Involving Overseas Trip Sponsored By Charitable/Religious Organization (NY) June 5, 2017 < Back Share to: Senior Partner Paul Clark and Associate Peter Luccarelli III successfully convinced the Appellate Division, First Department to reverse a New York County trial court’s decision denying our client’s motion for summary judgment in an alleged sexual assault case. Lerner involved a claim of a 19 year old participant in an overseas trip by our client, a charitable and religious organization. At the end of the day’s sponsored activities, plaintiff and several other trip participants, all of whom were of legal drinking age, retired to the hotel bar. At the hotel bar, plaintiff met, and later left with other male hotel guests who were not members of the trip. Hotel personnel later found plaintiff disoriented in a hallway, and the investigating officers determined that she may have been sexually assaulted and possibly drugged by her assailants. Plaintiff filed suit against our client for allegedly failing to properly supervise her and prevent her assault at the Hotel after all sponsored activities were over. We moved for summary judgment on the basis that there was no duty to supervise an adult who drank in a hotel bar not owned, maintained, or controlled by our client. We further argued that any duty of care owed by our client to plaintiff was severed by the acts of the criminal third-parties who were unknown to our client. The trial court initially denied our motion on the basis that our client failed to prevent plaintiff from drinking excessively. On appeal, the First Department unanimously reversed the trial court order and granted our motion for summary judgment. The First Department held that even assuming a duty to prevent an adult plaintiff from drinking excessively, there was nothing our client could have done to prevent plaintiff’s alleged assailants from perpetrating an unforeseeable—and unfortunate—criminal act against her. If you have any questions about this post, please email Paul at pclark@wcmlaw.com . Previous Next Contact

News Don’t Look To Lyft For Recovery For Driver’s Sexual Misconduct (NY) August 11, 2023 < Back Share to: When bringing a cause of action based on the theory of respondeat superior, New York courts have determined that “a sexual assault perpetrated by an employee is not in furtherance of an employer's business and is a clear departure from the scope of employment, having been committed for wholly personal motives." Recently, in Browne v Lyft, Inc., such a circumstance was before the Court with the underlying injury occurring during a Lyft ride on October 12, 2018. The infant plaintiff was being driven by defendant Narinderjit Singh when, during the course of the ride, Singh allegedly unbuckled or unzipped his pants and began masturbating. Singh ceased doing so only when noticing that he was being recorded on the infant plaintiff’s cell phone. In addition to bringing an action against Singh, plaintiff commenced an action against Lyft alleging that Lyft was vicariously liable for Singh's acts under the doctrine of respondeat superior. In reversing the lower court’s decision, the Appellate Division granted Lyft. Inc.’s motion to dismiss the complaint pursuant to CPLR 3211(a)(7). The Court based this decision on the idea that, while the drivers tortious act occurred during the course of his employment with Lyft, it was not an act that was done in furtherance of Lyft’s business and the scope of Singh’s employment. In giving texture to scope of employment, the Court opined that employee actions fall within the scope of employment where the purpose of such actions is to further the employer's interest or business. According to the Appellate Court, “where an employee's actions are taken for wholly personal reasons, which are not job related, the challenged conduct cannot be said to fall within the scope of employment." Singh’s conduct deviated from his duties as a Lyft driver and done for personal motives. Therefore, the Court reasoned, the sexual misconduct could not be said to be within the scope of employment and granted the branch of Lyft's motion dismissing the vicarious liability cause of action. Thanks to Rebecca Pasternak for her contribution to this article. Should you have any questions, contact John Diffley. Previous Next Contact

News Comparative Negligence Crushes Plaintiff’s Labor Law §241(6) Claims (NY) January 12, 2017 < Back Share to:   In Cardenas v 110127 Cabrini Apts. Corp., 2016 NY Slip Op 08835 (2d Dept. 2016), plaintiff was injured when the ladder he was using became unlocked, causing him to fall and sustain injuries. Plaintiff claimed that he notified his employer of the problem prior to the accident but was told to continue using the ladder anyway. Plaintiff commenced suit against the building owner and managing agent as all claims against his employer were barred by the Workers Compensation law. All parties moved for summary judgment. The lower Court granted plaintiff’s motion in its entirety and denied the defendants motions. On appeal, the Court held that plaintiff’s continued usage of the ladder, despite having knowledge of a defect, created a question of fact as to plaintiff’s comparative negligence. The Court determined that since plaintiff failed to meet his burden in showing that he was free from comparative negligence, that the defendants motions as to Labor Law §241(6)should have been granted and reversed the lower court’s decision. Though Labor Law §240 was still an issue in this case, the Court has shown that plaintiff must prove that he was free from fault to succeed under Labor Law §241(6) and that not all Labor Law provisions are slam dunks for plaintiffs. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News UIM Claim Results in Bad Faith Punitive Damages Verdict (PA) February 18, 2016 < Back Share to: The case of Bernie Clemens and Nichole Clemens v. New York Central Mutual Fire Insurance Co began on August 26, 2009 when Bernie Clemens sustained back and neck injuries as a passenger in a car rear-ended by an underinsured motorist. He settled with the tortfeasor for her $15,000 policy limit and sought coverage from the UIM carrier for the vehicle in which he had been riding. The accident occurred in Mount Pocono, Pennsylvania. The insurer, New York Central Mutual Fire Insurance Co. was located in Liberty, New York. Although the UIM coverage was $50,000, under New York law, only $35,000 was available above to Clemens above the amount he had received from the tortfeasor. New York Central Mutual initially offered Clemens $7,000 based upon information that Clemens was not wearing a seat belt at the time of the accident. The insurer justified this on the basis of a New York law that this failure was evidence of comparative negligence. As the claim progressed, various conflicts arose between Clemens and the carrier. While the carrier wanted Clemens to travel to its offices 80 miles away from his home to give a statement, Clemens insisted that the adjuster come to him in Pennsylvania. Additionally, Clemens balked at giving HIPAAs for records that he had provided to the insurer. Clemens filed suit against New York Central in federal court. While the UIM claim ultimately settled for $25,000, the claim for bad faith claim proceeded to a five day trial. Clemens alleged that in the process of handling the UIM claim, New York Central committed bad faith in a number of ways, including pressuring claims adjusters to pay less on valid claims, requesting signed authorizations without actually making specific requests, and demanding that Clemens travel to New York Central offices to make a statement under oath. Clemens relied upon an insurance expert who was allowed to testify as to the ultimate issue in the case, i.e. New York Central committed bad faith in its handling of the claim. For its part, New York Central argued that Clemens committed bad faith in refusing to travel to their offices to make a statement, and further claimed that Clemens was deliberately trying to set up New York Central for the bad faith claim. After four hours of deliberation, the jury awarded Clemens $100,000 in punitive damages. Thanks to Melanie Brothers for her contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News PA Superior Court holds that civil jury trial requires 12 jurors. September 21, 2007 < Back Share to: Under Rule 1007.1(c), 12 jurors are mandated unless a fewer number is consented to, 10 of whom must agree on the verdict. An 8 member jury requires 7/8 for a verdict. http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1189760565245 Previous Next Contact

News Renewal Application Creates No Obligation for Coverage May 19, 2017 < Back Share to: “He who represents himself has a fool for a client” - a saying often attributed to Abraham Lincoln, and just last week apparently co-signed by the Appellate Division of the New Jersey Superior Court in Sicari v Hartford Insurance Company of the Midwest. The Plaintiff attorney appeared pro se in the action. He obtained insurance through Hartford for 2010-2011 to cover his law practice, including coverage for general liability, business property liability, and lawyer’s professional liability. He paid over $2,000 in premiums. In May 2011, Hartford sent Plaintiff a letter advising that they were “no longer writing lawyer’s professional liability coverage.” Plaintiff testified he never received Hartford’s notice. In June 2011, Plaintiff sent Hartford a renewal application for lawyer’s professional liability coverage, to which he received no response. Hartford then issued insurance policies to Plaintiff for the years 2011-2012, and 2012-2013. These policies did not contain lawyer’s professional liability coverage, a fact the Court noted was suggested by a drastic reduction in premiums. In July 2013, Plaintiff found himself the subject of a potential malpractice claim, and only then did he “discover” he no longer had professional liability coverage. His suit against Hartford sought retroactive coverage based on Hartford’s failure to notify him of the decrease in coverage, and a contractual obligation to provide coverage ostensibly triggered by his renewal application and Hartford’s failure to adequately respond to same. The Court was unmoved by Plaintiff’s arguments, noting “an insured is chargeable with knowledge of the contents of a policy.” Although the case represents a confirmed victory for Hartford, the Court provided one bit of practical advice to insurance providers: when in receipt of a renewal application, “the better practice would [be] to notify the [insured] or the broker” that the coverage requested will not be renewed or is no longer offered. Thanks to Vivian Turetsky and Christopher Soverow for their contributions to this post. Previous Next Contact

News WCM is Pleased to Announce that James W. Scott, Jr. has been Promoted to Partner July 1, 2022 < Back Share to: Effective July 1, 2022, Jim Scott, who works in our Philadelphia office, has been promoted to partner. Jim is the current President of the Pennsylvania Defense Institute and a past-President of the Philadelphia Association of Defense Counsel. As such he is the only attorney ever elected president of both defense organizations. Jim is a graduate of Duke University and Temple University School of Law. With 28 years of experience, Jim focuses his practice on the defense of construction defect, construction accident, premises liability, and products liability claims. Prior to becoming an attorney, Jim was the Assistant Director of Operations with the largest fabricator/erector of structural steel in the Delaware Valley. As such, his construction defect practice has been substantially enhanced by significant real world experience. Previous Next Contact

News Threshold" motions still difficult to win in Second Department (NY) February 21, 2013 < Back Share to: The dreaded "90/180 day rule" is a bane of defendants in the context of New York motor vehicle accident suits. The rule, encompassed within Insurance Law Section 5102(d), states that a motor vehicle plaintiff's injury is not "serious" enough to maintain a suit unless that plaintiff is significantly limited in daily activities for 90 of the first 180 days after the accident occurs. Not surprisingly, the entire physical therapy industry owes a debt of gratitude to this rule, because plaintiffs are well-advised to document their treatment for the first six months after the accident. Conversely, since motor vehicle lawsuits need not be commenced for three years, defendants' doctors do not even examine plaintiffs until well after the expiration of 180 days, making it virtually impossible to rebut the contemporaneous reports of plaintiffs' doctors. In Calcano v. Rodriguez, a plaintiff underwent an MRI on her shoulder five weeks after the accident, a significant tear was observed, and the plaintiff underwent surgery months later. Notwithstanding the degenerative pathology observed by the defendant's doctor in reviewing the same MRI film, the Second Department reversed the trial court and found that it was unable to rule, as a matter of law, that the injuries were not proximately caused by the accident. The concurring opinion goes a step further, noting that if a plaintiff develops subjective complaints after an accident, then there is an automatic issue of fact as to causation regardless of whatever degenerative issues are present. Decisions like this one should be kept in mind before pursuing a Threshold motion for summary judgment, absent a blatant pre-existing condition, subsequent lapse in treatment, or intervening injury, which all can serve to disrupt the causal link between the accident and the injury. Special thanks Brian Gibbons for his contributions to this post. For more information, please contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News NJ App. Div. Affirms No Cause Verdict In Favor Of WCM In Insurance Broker E&O Case. March 15, 2010 < Back Share to: In Credit Suisse First Boston v. Lehman, et al, the plaintiff's had sought in excess of $5.5 million in damages from an insurance broker represented by WCM partner, Robert Ball, and a wholesaler. Plaintiffs alleged that the insurance broker and wholesaler failed to procure the appropriate insurance policies to cover a New Orleans hotel owned by Credit Suisse which was the subject of multiple mold claims. After a 6 week trial, the jury found the insurance broker negligent , but that the negligence did not proximately cause any alleged damages. On appeal , the New Jersey Appellate Division affirmed the verdict finding no error in the jury charge, " little question" that the insurance policies procured required the carrier to defend and indemnify Credit Suisse, and that Credit Suisse's decision to settle the underlying claims without suing the insurance carrier " highly questionable". The latter point had been the basis of WCM's lack of proximate cause argument to the jury. If you have any questions regarding this trial or appeal , please contact Robert Ball in our New Jersey office. http://www.judiciary.state.nj.us/opinions/a2031-08.pdf Previous Next Contact

News Falling Object: Labor Law Violation or Simple Premises Liability (NY) May 23, 2019 < Back Share to: Plaintiffs have come to rely on the strict liability imposed by Labor Law 240 to secure high settlements/verdicts. However, the case below demonstrates that not every complaint that comes in with allegations of Labor Law violations is grounds for concern. In Djuric v. City of New York, a pollution control plant that had previously sustained fire damage was undergoing renovation work. The plaintiff was employed by the steamfitting subcontractor hired to perform mechanical work in the building. While working, the plaintiff was struck in the back of the neck by a pipe saddle that came lose from an overhead pipe hanger. All of the defendants moved to dismiss the plaintiff’s Labor Law 240 and 241(6) claims. The lower court granted the motion. The First Department affirmed the decision, finding that the pipe saddle did not constitute a “falling object” under Labor Law 240 because it was not in the process of being hoisted or secured and there was no evidence that the pipe saddle fell because of the absence of a safety device. The appellate court further noted that the pipe saddle was a permanent part of the structure and that its defect was latent and, as such, the defendants could not have known of its potential condition prior to the accident. Finally, the Court held that the Industrial Code cited by the plaintiff under Labor Law section 241(6) was inapplicable because this object that fell from above was not part of the construction debris but, rather, was a fixture of the building which became dislodged. In other words, because the object that fell from above was not installed, altered, or in any way tampered with during the construction, the Court in the above case analyzed the defendants’ potential liability exposure through the lens of a premises liability action rather than scrutinizing it more strictly under the Labor Law’s guidelines. Thank you to Margaret Adamczak for her contribution to this post.   Previous Next Contact

News Emergency Is Valid Defense to Collision May 16, 2011 < Back Share to: In Zapata v. Sutton, 2011 NY Slip Op 03962, defendant was sued after his car collided with another car that had crossed over double yellow lines and into his lane from the opposite direction. Defendant moved for summary judgment and the court found that defendant could not be held responsible for any part of the accident as he was “presented with an emergency situation not of his own making” and had almost no time to react. As such, summary judgment was granted. The appellate court affirmed, finding that plaintiff’s expert report was nothing more than pure speculation and unsubstantiated by any facts and thus failed to raise a triable issue of fact. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03962.htm Thanks to Alison Weintraub for her contribution to this post. Previous Next Contact