News Criminal Double Faults; John McEnroe Nets Gorky’s Pirate II August 30, 2013 < Back Share to: When John McEnroe partnered with Lawrence Salander to purchase Arshile Gorky’s Pirate II back in 2004, he could not have imagined that he would eventually have to step into a different kind of court just to get back what was rightfully his. But that is exactly what he did in The Dorothy G. Bender Foundation, Inc. and John McEnroe v. Carroll, after Salander, his partner in the joint venture, traded the painting away without his knowledge. When McEnroe agreed to purchase the painting with Salander, the now infamous fraudster committed his first fault by entering into a similar arrangement with Morton Bender to purchase the same painting. After taking money from McEnroe and Bender, Salander purchased the painting in 2004 and led both men to believe that Pirate II belonged to them. Two years later, he committed his second fault when, unbeknownst to McEnroe and Bender, and using the name of a fictional entity, he swapped Pirate II for two lesser valued works from Joseph Carroll in 2006. After learning that Carroll was in possession of their painting, McEnroe and Bender filed suit to recover it. Article 2 of the Uniform Commercial Code usually protects purchasers of fine art when the work was entrusted to a merchant who deals in goods of the kind. The test is whether the buyer, without knowledge that the purchase violates the rights of another, bought the work in the ordinary course of business. But like many rules in the legal world, this one has exceptions; and Judge Kornreich found that one of them applied. Because art dealers have knowledge of their trade, a heightened standard of commercial reasonableness applies to their transactions. This includes a duty to investigate when “red flags” are raised about a potential sale. In this case, the court found it significant that Carroll obtained Pirate II by trading two works significantly lower in value, failed to inquire into the existence of Salander’s fictional entity that originally aroused his suspicions, and ignored a provenance statement that did not list a current owner of the work. According to the court, acquiring Pirate II under these circumstances did not meet the UCC’s standard of commercial reasonableness. Accordingly, the court ruled that McEnroe was entitled to have his property returned. McEnroe could not have known he was dealing with a fraudster when he purchased Pirate II in 2004. Fortunately for him, the result he obtained in the New York Supreme Court was just as favorable as those he routinely earned on the tennis court. Despite the protections afforded to bona fide purchasers by the UCC, McEnroe was undoubtedly happy to learn that when fairness dictates a result, courts of law can indeed be serious. Special thanks to Michael Gauvin for his contribution to this post. For more information, please contact Dennis M. Wade at dwade@wcmlaw.com . Previous Next Contact

News Hope And Speculation Is Insufficient To Defeat Pre-Discovery Summary Judgment Motion (NY) April 22, 2022 < Back Share to: In Mauro v. City of New York, the Second Department recently addressed whether the defendants’ pre-discovery motions for summary judgment were premature. Plaintiffs in that case were involved in a motor vehicle accident when they came in contact with “an opening in the roadway caused by a missing manhole cover.” Defendants Keyspan Corporation and National Grid USA moved for summary judgment, introducing evidence to show that they were not the proper parties. In reversing the Supreme Court’s denial of the motions, the Appellate Division held that plaintiffs' contention that the motion was premature is without merit. "A party contending that a motion for summary judgment is premature is required to demonstrate that additional discovery might lead to relevant evidence or that the facts essential to oppose the motion are exclusively within the knowledge and control of the movant." The court further held that "the mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion." The Mauro case serves as a reminder that mere “hope or speculation” will not be enough to defeat a pre-discovery summary judgment motion, and that defendants should consider making such motions in appropriate cases. Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News NY App. Div. Dismisses Plaintiff's Complaint Based on Assault May 18, 2010 < Back Share to: In Cagliostro v Madison Sq. Garden, Inc., plaintiff claimed to have sustained injuries to his shoulder when he slipped and fell while attending a rock concert at “the world’s most famous arena”. During plaintiff's deposition, plaintiff stated that he slipped and fell due to liquid on the floor near his seat and hurt his back. Plaintiff was approached by defendant’s employee who told plaintiff to sit at an empty aisle seat. Another employee later approached plaintiff and although plaintiff informed him he was in a lot of pain, he grabbed and pulled plaintiff out of the seat and caused plaintiff to fall and hurt his shoulder. Defendant moved to dismiss plaintiff's complaint on the basis that plaintiff's deposition showed that his injuries were caused by an assault that was time barred. The trial court granted defendant’s leave to amend its answer to include a statute of limitation defense but denied its motion to dismiss plaintiff's complaint stating that "it could not find as a matter of law that plaintiff's negligence claim 'has been completely supplanted by evidence only of an assault.'" On appeal, the First Department found that the plaintiff's injuries were caused by an assault. The appellate court rejected plaintiff's argument that there was evidence sufficient to show a cause of action for negligent training, supervision, and retention of staff. The trial court’s decision was overturned and defendant's motion to dismiss was granted. Thanks to Katusia Lundi for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04112.htm Previous Next Contact

News "Sending" School District Not Liable For Death of Disabled Student (NY) September 23, 2013 < Back Share to: The educational environment in today's schools has come a long way since the more traditional classrooms of the 1950s and 1960s where a premium was placed on memorization and good conduct. Recognizing that some students have different learning styles, physical needs or medical issues, school districts are now required to provide a free and appropriate education to all students including those with disabilities. In light of this idealistic framework, what is the duty of care of a school district that contracts for special services with a private school as well as registered nurses who travel with and monitor a disabled student? Is the “sending” school district required to supervise the private “receiving” school or the nurses who provide monitoring services? “No,” according to the Second Department in Begley v. The City of New York, The Forum School, et al. The facts of Begley are tragic. Jonathan Begley, age 9, suffered from asthma as well as allergies to a wide variety of food and substances. He was also diagnosed as autistic. When his local public school concluded that it could not meet his needs in district, it agreed to pay for a special school program at The Forum School as well as a registered nurse to monitor Jonathan on the bus to and from the school and during his school day. The nurses were found, interviewed and approved by Jonathan’s mother but paid by the New York Department of Education (“DOE”). Jonathan went into anaphylactic shock while at school when he came into contact with an unknown allergen. His nurse initially gave him nebulizer treatment to assist his breathing and then a series of epi-pens when it was suspected that he was having an allergic reaction. 911 was called but, due to heavy call volume, EMTs did not arrive until 20 minutes later. The Second Department examined whether the DOE, as the “sending” school district, had a duty of care to supervise Jonathan who was not in its physical custody, care or control while attending The Forum School. Emphasizing that the DOE’s duty of care flowed from the school’s physical custody of and control over its students, the court concluded that the DOE did not breach any duty of care to Jonathan. The Second Department noted that the case might have been decided differently if Jonathan’s IEP failed to alert the “receiving” school that he had numerous allergies or that he required nursing services for his asthma and allergies. Although his death was tragic, the DOE had strong facts that established that it appropriately evaluated Jonathan, referred him to a special school, and paid for ancillary nursing services at great cost to the "sending" school district. As noted in the decision, “this is not a case in which the DOE failed to properly identify, in its IEP, the child’s special needs, and the services necessary to provide the child with an appropriate education.” If you have any questions about this post, please contact Paul at pclark@wcmlaw.com Previous Next Contact

News "Hired Gun" Expert Testimony Still Has To Be The Right Caliber To Hit The Mark of Admissibility April 5, 2024 < Back Share to: It is all too common for a case to get bogged down in a battle of the experts. Expert testimony can make or break a theory of recover or a defensive position; so much so that there are rules that have been put in place to ensure that an expert’s testimony is worthwhile and meets appropriate standards so as to be admissible at trial. A recent diversity action filed in the Eastern District of Pennsylvania of the federal courts examined this issue. Plaintiff Keith Slatowski (“K. Slatowski”) and his wife Bianca Cemini Slatowski (“B. Slatowski”) (collectively the “Slatowskis”) sued Sig Sauer, Inc. (“Sig Sauer”) a firearms manufacturer, as the manufacturer of a P320 pistol that the Slatowskis alleged unintentionally fired and injured K. Slatowski. Keith Slatowski & Bianca Cemini Slatowski v. Sig Sauer, Inc. , No. CV 21-729-RBS, 2024 WL 1078198, at 1 (E.D. Pa. Mar. 12, 2024). The Slatowski’s action alleged “seven causes of action against Sig Sauer: strict product liability (count I); negligence (count II), breach of the implied warranty of merchantability (count III); breach of express warranty (count IV); negligent infliction of emotional distress (count V); intentional infliction of emotional distress (count VI); and loss of consortium (count VII).” Id at 2. Sig Sauer thereafter filed a motion for summary judgment. Id . Sig Sauer argued “that Plaintiffs cannot establish their defective design product liability claim because the expert testimony they have offered to prove causation is inadmissible and unreliable.” Id . at 1. Specifically, Sig Sauer argued “Sig Sauer argues that expert testimony is generally required to prove causation when a design defect is alleged, and a ‘plaintiff in a complex design case cannot establish causation when the district court excludes his expert from offering causation opinions or testimony at trial.’” Id. at 3 (quoting Sig Sauer’s motion). In opposition to Sig Sauer’s motion, the Slatowskis argued that causation should be submitted to a jury as a factual question and that expert testimony is not required when a matter “under consideration is simple, and a jury will be able to rely on ‘a common understanding of how pulling on two different items, one without a safety interlock, and one with a safety interlock, can have two widely different results’ to establish causation.” Id . (quoting the Slatowski’s opposition). The court came to its decision after a review of Federal Rule of Evidence 702 which governs the applicable law on expert testimony admissibility. The court also noted that expert opinions can be “quite misleading because of the difficulty in evaluating it.” Id . at*2. Also, that the “Federal Rule of Evidence 702 contains a ‘trilogy’ of requirements: ‘qualification, reliability and fit.’” Id . at *3 (citing Estate of Schneider v. Fried , 320 F.3d 396, 404 (3d Cir. 2003)). For the qualification requirement experts must “possess specialized expertise” which “has been interpreted liberally, and ‘a broad range of knowledge, skills, and training’ may qualify someone as an expert. Id . In addition to recounting the eight (8) factors a district court must evaluate with regard to reliability of an expert, the court also stated that expert reliability requires that the expert testimony “be based on the methods and procedures of science rather than on subjective belief or unsupported speculation; and the expert must have good grounds for his or her opinion.” Id . Finally, the court relayed that to “satisfy the fit requirement, ‘testimony must be relevant for the purpose of the case and must assist the trier of fact.’” Id . With regard to defective design of a product, the court stated that under Pennsylvania law to prevail on a claim of defective design in a product liability action, a plaintiff must prove (1) that the product was defective, (2) that the defect existed when the product left the hands of the defendant, and (3) that the defect caused the harm. Id . In reaching its decision, the court also detailed the Slatowski’s expert’s opinion, including the acknowledgment that “he had limited information as to how the intentional discharge in this case occurred.” Id . at 5. Further, the Slatowski’s expert “recognized that he does not know whether [K.] Slatowski’s finger or a foreign object actuated the trigger” “did not know what holster the pistol was in when it discharged” and “concluded that ‘with the absence of any manual safeties on that P320, somehow the trigger was actuated by a finger [or] by something that caused that pistol to fire,” but qualified “the basis of his opinion: ‘That’s the only opinion I can really afford because I wasn’t there. I didn’t see it.’” Id. The Slatowski’s expert offered various opinions on the issue. Id. at 6. Ultimately, however, because Sig Sauer argued that the Slatowski’s opinion was speculative “ipse dixit” and that the Slatowski’s expert had “not provided a basis for his conclusion….” Id . The court agreed with Sig Sauer and held that the Slatowski’s expert’s testimony was inadmissible under Rule 702 and Daubert . Id . In coming to its decision the court stated that “reports that ‘simply describe[ ] reported phenomena ... and do not investigate or explain the mechanism of causation’ are not reliable scientific evidence of causation.” Id . (quoting Casey v. Ohio Med. Prods. , 877 F. Supp. 1380, 1385 (N.D. Cal. 1995)). Thus, because the Slatowski’s expert had “described the features of a P320 pistol and the nature of various manual safety mechanisms” but had not “provided a methodology, reasoning or support to explain why or how a tabbed trigger would have prevented the unintentional discharge” of the pistol, the court concluded that there had not been any “discernible methodology” or that the Slatowski’s expert had “shown that his hypothesis was testable” or that the expert’s “analysis is generally accepted or subject to peer review.” Id . at 7 (internal citations and quotations omitted). A similar analysis was provided by the court as to a second expert’s testimony on behalf of the Slatowskis. Id. at 8. The upshot of the above is that while it is often necessary to hire an expert to opine on a case’s circumstances in order to have a chance at prosecuting a claim or defending one, doing so is purely a waste of resources when the expert does not properly address the requirements for that expert’s opinion to be admissible at trial. Parties cannot rely on the mere fact that an expert draws the conclusion that might be supportive of their arguments—the expert needs to connect all of the dots. Facts and theories must be testable and tested with discernible methodology, conclusions must be drawn from the generated data, and any opinions must have a basis in the above. Failure to do so could just result in the expert’s testimony being tossed out and the case being lost, so keep the expert testimony requirements in mind as you set your sights on trial. Keith Slatowski & Bianca Cemini Slatowski v. Sig Sauer, Inc. .pdf Download PDF • 244KB Previous Next Ryan Hunsicker Ryan Hunsicker Senior Associate +1 267 239 5526 rhunsicker@wcmlaw.com Contact

News Trivial Sidewalk Defect Is A Question For The Jury (PA) December 6, 2019 < Back Share to: In Shaw v. Thomas Jefferson University and City of Philadelphia, the plaintiff fell on a sidewalk at Thomas Jefferson University. Shaw filed a complaint against the University and the City of Philadelphia alleging that there was an irregularity and/or unsafe condition in the sidewalk that caused her to fall and injure herself. During her deposition, Shaw testified that her view of the sidewalk was unobstructed and that she was not looking down at the time of her fall. She further testified that following her fall she visited the site of the accident to measure the sidewalk and noted that there was a 2 to 2½ inch elevation change from one segment of the sidewalk to the next. The University and the City both filed motions for summary judgment claiming they were not negligent because, among other things, the sidewalk defect was trivial. The trial court granted both motions and dismissed all claims against both defendants. On appeal, Shaw argued that the trial court erred by determining that the defect in the sidewalk was trivial and not a question for the jury. The appellate court noted that it was well-settled that a sidewalk defect may be so trivial that a court must hold, as a matter of law, that the property owner was not negligent in allowing it to exist; however, it also noted that there was no bright-line rule that can be used to determine “the depth of size of a sidewalk depression necessary to convict an owner of premises of negligence in permitting its continued existence.” As such, the court agreed with Shaw that summary judgment should not have been granted because no bright-line rule exists for a court to use in determining whether a sidewalk defect is trivial. The court further held that this was a question that should have been submitted to a jury. Special thanks to Colleen Hayes for her contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News New Jersey's New Complex Litigation Rules -- What's New? (NJ) November 7, 2018 < Back Share to: Introduction and Background As many have experienced, New Jersey Courts can become a quagmire in construction defect (and other complex) cases. To potentially fix this issue, on September 1, 2018 New Jersey implemented brand new Complex Business Litigation Program (“CBLP”) rules – rules that presumptively include all complex construction defect cases with a value above $200,000. This post is a general guideline on (1) what the CBLP changes; and (2) how to effectively utilize the CBLP in an advantageous fashion. One Judge Per County The CBLP requires each New Jersey county to designate a CBLP judge to rule on motions or otherwise preside over the inevitable discovery disputes common to CD cases. This particular rule, §4:102-3, should hopefully allow more prompt discovery rulings that allow cases to progress quicker than the current system. Result: The new CBLP rules will likely result in a more efficient discovery practice as the presiding Judge will be familiar with complex construction actions and the complications of the same. Initial Conference §4:103 requires all parties, prior to (a) discovery commencing; and (b) an initial case management conference, to hold a conference among all counsel. This initial conference is where smart litigants can really obtain an advantage. During this conference, counsel is required to:Set initial case deadlines, including deposition and discovery end dates;Set deadlines for initial disclosures;Set limits for discovery requests. The current CBLP rules limit discovery requests to 15 interrogatories per party, including sub-parts, unless otherwise stipulated or ordered by Court.Set limits for the hours and amounts of depositions. The CBLP Rules presumptively limit, unless otherwise stipulated by the parties or ordered by the Court, a limit of 70 hours for plaintiff depositions and 70 hours total for all defendant depositions. This conference is where a smart litigator can utilize the rules in a fashion to craft an advantage for a client. Is the client a 3rdor 4thparty defendant with limited liability? If so, it would be best to limit discovery as much as possible. Is the client the target defendant? If so, it would be best to expand discovery as much as possible. Result: If played properly, the new rules allow for tactical decisions to benefit the client and/or limit defense costs. Initial Disclosures As noted above, initial disclosures are now required in all CBLP cases. The disclosures include the following information: (1) all relevant insurance policies; (2) identity of individuals with discoverable information; (3) initial relevant documents or categories of relevant documents; and (4) alleged damages. The Initial Disclosures are a blessing for risk-transfer purposes. Often, through the intransigence or indifference of counsel, the actual insurance policies often must be subpoenaed – which is not a short process. Consequently, the new CBLP rules allow the risk-transfer phase of construction litigation to commence at an earlier stage. Specifically, this allows initial tenders and specific responses at an earlier date – which starts the clock for potential reimbursement of costs and/or fees. Result: The inclusion of the mandated exchange of insurance policies is a massive benefit to the program. Moreover, the disclosures additionally require all parties to disclose the identities of individuals with relevant information at an early stage, without specific requests, This can also allow the early joinder of relevant parties as well as an analysis of possible contribution and/or risk-transfer possibilities. Meet and Confer However, with respect to discovery motions, the new CBLP rules also require the parties to “meet and confer” prior to the filing of the motion. This is similar to the requirement in Federal Courts, that require the relevant parties to attempt to resolve the dispute in good faith prior involving the Courts. Result: Parties will likely no longer unreasonably withhold discoverable information that another party is entitled to. Discovery motions will no longer be commonplace but rather only result where a genuine dispute exists between the parties. Conclusion These new rules are designed to streamline the litigation process. Whether or not they actually effectuate change and make construction defect litigation more efficient remains to be seen. We’re only two months into the new rules, so much remains to be seen! Thanks to Matt Care for his work on this post. For more information about it, please contact Bob Cosgrove. Previous Next Contact

News Homeowner's Ice Removal Efforts Sufficient to Bar Recovery (PA) October 19, 2016 < Back Share to: In Sirchio v. Macdougal, the Montgomery County Court of Common Pleas addressed a few common issues that arise in sidewalk slip and fall cases during the cold winter season. The plaintiff fractured his ankle when he slipped on an icy patch of sidewalk while walking home one January evening in Conshohocken. The plaintiff sued the defendant homeowner and alleged that the defendant was negligent in the maintenance of the property, because the defendant’s drainage system was improperly configured and leaked water onto the sidewalk. The plaintiff also alleged that the area in front of the defendant’s home was not sufficiently lit and that the defendant should have known that the combination of the leaky water and poorly lit area created a hazardous, icy condition in the cold winter months. The defendant countered that he was in fact aware of the propensity for dangerous icy conditions on the sidewalk; and that he exercised extra care in the winter by shoveling his walk, breaking up the snow and ice with a shovel, and applying materials to melt the ice. The defendant also noted that there was a street lamp located less than a block away, and introduced expert evidence that the drainage system did not violate any municipal codes. Finally, the defendant alleged that the plaintiff was comparatively negligent because the surrounding sidewalk was covered with snow, and thus the plaintiff should have been more careful when walking on the snow-and-ice covered sidewalk. The plaintiff sought damages totaling $250,000 for past medical costs, lost wages, as well as past and future pain and suffering. However, a twelve member jury found that the plaintiff was 65% liable and the defendant homeowner was only 35% liable. Under Pennsylvania’s comparative negligence law, the defendant was thus barred from receiving any damages. Defendants should be mindful that retention of the proper liability experts likely made what amounted to a defense verdict possible here. Thanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Data Extraction From LinkedIn, Which Includes Profile Information Permitted June 2, 2022 < Back Share to: Data analytics companies have the ability to extract data from social media platforms despite the claims from the social media companies that the data collected violated federal hacking laws. In a recent decision of HiQ Labs, Inc. v. LinkedIn Corporation, the U.S. Court of Appeals for the Ninth Circuit reaffirmed that data analytics company HiQ Labs Inc. has the ability to scrape publicly available data from LinkedIn’s platform despite LinkedIn’s claim that the data collected violated federal hacking laws. HiQ Labs Inc., founded in 2012, scraped information from public LinkedIn profiles, such as name, job title, work history and skills, then the company combined the collected data with a proprietary predictive algorithm to yield “people analytics,” in order to sell data to its business clients. LinkedIn asserted that HiQ’s abstracting information from public LinkedIn profiles violated LinkedIn’s user agreement, state & federal law- Computer Fraud and Abuse Act (CFAA), the Digital Millennium Copyright Act, California Penal Code §502(c), and the California common law of trespass. The Ninth Circuit panel stated that CFAA forbids access to a “protected computer” without authorization and public LinkedIn profiles are considered a “computer.” Thus, access to public profiles on LinkedIn are open to the general public and permission is not required. Thanks to Marium Sulaiman for her contribution to this article. Should you have any questions, please contact Thomas Bracken. Previous Next Contact

News How Reasonable Does a Reasonable Inspection Have to Be? July 5, 2024 < Back Share to: In Doherty v. 730 Fifth Upper, LLC , Kyle Doherty alleges he sustained injuries when the glass door he used to enter the lobby of the Crown Building at 730 Fifth Avenue shattered, causing glass and metal debris to fall onto him. Specifically, Doherty stated that as he pulled on the interior vestibule door’s metal door handle, the top two connection points immediately failed, causing the handle to swing free, hit the floor, and shatter the door as he entered. The landlord, 730-Gen, filed a motion for summary judgment, which the Supreme Court granted. On appeal, the Appellate Division, First Department reversed. It is undisputed that 730-Gen did not create or have actual notice of the defect in the door handle. However, 730-Gen failed to meet its initial burden of establishing, prima facie, that it lacked constructive notice of the alleged defective condition. Specifically, 730-Gen failed to establish that it performed reasonable inspections on the vestibule door’s handle. 730-Gen did inspect the interior vestibule doors following an incident that involved the exterior doors in the weeks prior to the accident. However, the testimony regarding the prior inspection was vague and unable to provide specific dates of the inspection and the steps taken to examine the door handle. Moreover, inspecting the door handle on a biweekly basis, when a daily inspection protocol was in place, was not deemed reasonable. 730-Gen also failed to establish, prima facie, that the alleged defect in the door handle was latent and not discoverable upon a reasonable inspection on the day of the accident. In moving for summary judgment on the ground that a defect was latent, a defendant must establish that the defect was not visible or apparent and would not have been discoverable upon a reasonable inspection. It is significant to note what constitutes a “reasonable inspection” for premises liability. The development of policies to ensure specific and thorough periodic inspections are conducted may prevent potential liability. An evaluation of any premises liability claim must consider whether that standard of care has been met. Doherty v. 730 Fifth Upper, LLC .pdf Download PDF • 153KB Previous Next Contact

News WCM Wins SJ on Horseback Riding Case July 11, 2024 < Back Share to: WCM's Long Island office had a recent summary judgment victory on the case Shelley Headley v. Alana Payne et al with a successful motion filed by counsel Patrick Argento with guidance of supervising partner Gina Arnedos . This case involved a Plaintiff with 50 years of horseback riding who fell off of a horse owned by our clients, owners of Payne Farm. Patrick successfully persuaded the judge that no triable or material issues of fact existed as under both the Plaintiff’s version and our clients’ version, Plaintiff clearly assumed the inherent risk of riding a horse. In both versions, Plaintiff ignored not one but two opportunities to wear a helmet, either her own which she could have brought or one of the many the farm had available to borrow. She also presented herself as an expert rider and openly acknowledged that getting knocked off a horse is an inherent risk of horseback riding and that even the most well-trained horse can buck for almost any reason. This position was only strengthened by our expert Greg Coulson. Coulson’s expert affidavit clearly laid out how Plaintiff assumed the inherent risk of horseback riding and our clients did not increase that risk in any way. Plaintiff, in their opposition, failed to raise a triable issue of fact of any kind as the judge noted all the arguments they raised were limited to speculation and conjecture. Patrick’s victory on this motion is a huge win as Plaintiff claimed several significant injuries, including a traumatic brain injury, which could have led to massive exposure to the clients. Patrick’s hard work on this motion and the guidance provided to him by Gina led to a big win for our clients. For any questions about WCM's defense of equine claims, other sports-related accidents, contact Gina at garnedos@wcmlaw.com . Previous Next Patrick J. Argento Patrick J. Argento Counsel +1 516 873 0011 pargento@wcmlaw.com Gina M. Arnedos Gina M. Arnedos Partner +1 516 873 0011 garnedos@wcmlaw.com Contact

News Recreational Sports Participants Require Showing of Reckless or Intentional Conduct (NJ) November 21, 2018 < Back Share to: In C.H. v. Rahway Board of Education, a minor fourteen year old plaintiff (“C.H.”) was injured while participating in a student-teacher fundraising basketball game. Student participation was voluntary and the game was officiated by at least one referee. The minor plaintiff injured her knee retrieving a rebound after being boxed out by an adult teacher. The teacher was whistled for a foul; a few years later, the school district was served with a complaint. The facts describe normal activity that occurs when players attempt to make rebounds during a basketball game. Plaintiff C.H. testified that she and the teacher both jumped to retrieve a rebound. The teacher, however, “shove[d] back,” which caused her to land off-balance after their upper bodies collided. This off-balance landing caused her to injure her knee. C.H. subsequently filed a claim seeking damages for negligent supervision and recklessness. After the discovery phase ended, the school district moved for summary judgment as a matter of law. The trial court ruled for the school district. The court noted that C.H. failed to present any evidence that the district had engaged in negligent supervision, considering (1) the game was officiated by a referee, (2) five non-participating teachers supervised, and (3) C.H. failed to show how the injury could have been prevented by further supervision. The trial court also ruled that a participant in a recreational sport activity cannot assert a claim of mere negligence against a co-participant; instead, a plaintiff must show that the co-participant engaged in reckless or intentional conduct that caused the injury. On appeal, a unanimous Appellate Division panel upheld the trial court’s grant of summary judgment. Although school officials have a duty to supervise children in their care, that supervisory duty extends to “foreseeable dangers … [that] arise from the careless acts or intentional transgressions of others.” Frugis v. Bracigliano. 177 N.J. 250, 268 (2003). The undisputed facts in this case, based on deposition testimony and first-hand accounts, did not reveal a game being conducted in a reckless or out-of-control manner. C.H.’s injury therefore was not the result of lacking supervision, or a breach of a school official’s supervisory duty, but rather her participation in a recreational sport activity. Participants in recreational sports that cause injuries to other participants in a recreational sporting activity cannot be found liable for simple negligence. “[T]he duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct.” Schick v. Ferolito, 167 N.J. 7, 12 (2001) quoting Crawn v. Campo, 136 N.J. 494, 497 (1994). Since C.H. conceded that the teacher was not trying to injure her intentionally, the court looked for genuine issues of material fact showing the teacher acted recklessly when he jumped for the rebound. It found none. Finally, and perhaps most importantly, the court rejected C.H.’s argument to impose a negligence standard in connection with the parties’ teacher/school official-student relationship. Rather than conduct an analysis examining the interplay between a school official’s duties to his or her students, the court simply ruled the facts in the record did not demonstrate that the teacher used his position to conduct himself any differently than a normal basketball player. As a result, there is no basis to impose a greater duty on him than any other participant in a recreational sporting activity. Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact