News WCM Awarded Summary Judgment in Westchester County Premises Case. August 13, 2012 < Back Share to: New York, NY Associate Lora H. Gleicher was awarded summary judgment in a Westchester County, NY premises liability case. In the case of Salvati v. Marriott, the plaintiff allegedly sustained injuries when an umbrella struck her head while dining outdoors at a Marriott located in Arizona. Plaintiff claimed that Marriott negligently permitted an umbrella to be left open during unsafe weather conditions, failed to secure the umbrella to prevent it from becoming hazardous and failed to warn plaintiff about the alleged hazardous condition. At the close of discovery, we moved for summary judgment based on the fact that Marriott did not create or have notice – constructive or actual – of the allegedly hazardous condition that caused the umbrella to strike plaintiff’s head. Namely, Marriott was not aware of the allegedly hazardous wind condition that caused the subject umbrella to strike plaintiff. The trial court agreed with our analysis and thus dismissed the plaintiff’s complaint, nothing that Marriott was not responsible for the unpredictably of the weather. Previous Next Contact

News A Price Tag on Inconvenience? (NJ) June 27, 2019 < Back Share to: In LLoyds v. PSEG, the NJ appellate court considered whether a homeowner’s damages were limited to the cost of alternate shelter or whether the homeowner may seek additional damages based on a broader concept of inconvenience. The facts are as follows: a strong winter storm caused a high-voltage power line belonging to Public Service Electric and Gas (PSE&G) to fall and ignite fires in plaintiffs’ homes. Plaintiffs were displaced from their respective homes for ten months. Although the plaintiffs’ homeowners insurance reimbursed them for the repair costs and extended stays in motels during their displacement, plaintiffs filed suit against PSE&G for loss of use of their homes, emotional distress, and personal injuries. After being found liable in the first phase of a bifurcated trial, PSE&G argued that the individual plaintiffs had no loss and could not recover for pure "non-pecuniary" loss. The trial court granted PSE&G summary judgment and dismissed all remaining claims of non-economic damage. The Appellate Division reversed the trial courts holding. The Appellate Court relied heavily in the legal concepts expressed in Camaraza v. Bellavia Buick Corp., where it held a motor vehicle owner’s damages were not necessarily limited to the rental cost of a replacement. The court recognized that property owners, much like vehicle owners, may be damaged by more than just repair costs when unable to make use of their property. The Court found that the mere fact that plaintiffs were provided motel rooms and reimbursed meal and transportation costs by their insurance carriers did not foreclose their right to seek other damages resulting from the loss of the use of their homes. Citing to Camaraza, the Appellate Court held that damages in such circumstances “are not limited to pecuniary losses which are capable of precise measurement.” The Appellate Court held that the damages arising from the non-economic loss, which included the “inconvenience” from being denied the use of their home, the hardship of sleeping in a hotel, missing holidays in their family home, etc. should be a question of fact for the jury to decide. Thanks to Steve Kim for his contribution to this post. Please contact Brian Gibbons with questions. Previous Next Contact

News Expert’s Net Opinion Tangles Plaintiff’s Claim (NJ) August 23, 2018 < Back Share to: Expert opinions can be crucial for establishing or defending against negligence claims. New Jersey evidence rules require trial courts to serve an important gatekeeping function when it comes to expert witness testimony at the time of trial. The New Jersey Rules of Evidence requires experts to base their opinions on facts or data. An expert may not offer an opinion at trial unless it is based on some facts or evidence in the record. The courts have described this as the “net opinion” rule, which bars expert opinions that are based solely on unsupported conclusions. In Cabezas v. Spoleti, defendant was the owner of a residential property adjacent to plaintiff’s home. Defendant’s son, Vincent, lived nearby and helped his parents by maintaining their property including performing snow and ice removal during the winter seasons. Vincent did not receive compensation for his services. A few years before plaintiff’s accident, Vincent replaced the sidewalk abutting his parent’s home. He obtained a municipal permit for the work and did not receive any citations, warnings, or complaints with respect to the sidewalk replacement. Seven years after the sidewalk replacement, plaintiff walked past defendant’s home and slipped and fell on ice that had accumulated on the sidewalk. He was hospitalized for two days and underwent surgery on his right ankle. Plaintiff filed suit against defendants alleging negligent inspection and maintenance of the sidewalk. Plaintiff retained an engineering expert who prepared a report about the dangerous, hazardous conditions that existed due to the improper construction performed by defendants. The report cited general construction and property maintenance regulations but did not identify any building code or industry standard that required construction of a sidewalk in the manner the expert described. Plaintiff’s expert opined that a properly constructed sidewalk should be covered with a specific type of sealant, but cited only to his “personal engineering opinion” based on his experience and research rather than any specific industry standard. The appellate court found that plaintiff expert’s opinion lacked any foundation for admissibility. There was no authoritative materials that would support the expert’s opinions about accepted sidewalk construction practices or any basis on which to draw the conclusions offered. The appellate court affirmed the trial court’s dismissal of plaintiff’s claim, opining that plaintiff’s expert offered nothing more than a series of personal views which constituted a net opinion not worth of consideration. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Uncertainty in the world of threshold motions (NY) May 17, 2013 < Back Share to: In Malupa v. Oppong et al, the First Department unanimously affirmed the dismissal of the plaintiff’s complaint on threshold grounds. The plaintiff alleged injuries stemming from a motor vehicle accident, and the defendants moved to dismiss because plaintiff had not sustained a “serious injury,” under NY Ins. Law Section 5102. The defendants cited reports from their orthopedist and neurologist, who, after examining plaintiff, found full range of motion and no residuals, along with a radiological report noting only pre-existing degenerative conditions. Plaintiff failed to raise a triable issue of fact, despite his doctor’s affidavit noting range of motion restrictions, albeit minor ones. Moreover, the plaintiff’s physician does not address causation or the degenerative conditions noted by defendants. Conversely, last year in Njie v. Thompson, 2012 NY Slip Op 06564 the First Department denied a threshold motion because plaintiff's initial treating physician diagnosed a shoulder tear, and plaintiff's trial expert found some limitation in ROM. These two decisions hardly provide a roadmap on how to [prevail on a threshold motion, especially in light of similar present ROM findings in each case. We surmise that, had the plaintiff’s doctor in Malupa simply addressed the causation and degenerative issues referenced by the defendant’s doctors, the Court would have been forced to follow Njie and deny the Oppongs motion, based upon a triable issue of fact between the doctors. Going forward, if a defendant’s doctors can identify pre-existing degenerative conditions, these should obviously be cited to disrupt the causal link between the accident and the alleged injury. However, the ball then seems to be in the plaintiff’s court. If the plaintiff’s doctor addresses and rejects the defendant’s reports, a denied threshold motion will likely follow. Special thanks to Brian Gibbons for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News NJ Appellate Court Expands Bar's Liability for Drunken Patrons. March 21, 2008 < Back Share to: In the case of Bauer v. Nesbitt, A-2343-06, the decedent and his friend Nesbitt had been drinking heavily before they arrived at the C View Inn. Once at the inn, they ordered only cokes, but the decedent spiked Nesbitt's drinks to the point where Nesbitt was visibly intoxicated. Nesbitt subsequently attempted to drive the decedent home, but in his intoxicated state, caused a fatal crash instead. The decedent's estate sued the C View Inn. The trial court dismissed the action and held that because the C View Inn did not serve Nesbitt alcohol, New Jersey's Dram Shop Act, N.J.S.A. 2A:22A-1 to -7, did not apply. In reversing the trial court's dismissal of the action, the appellate court held: "if employees of the Inn recognized or should have recognized Hamby's intoxication as the result of the visible manifestations of his condition that we have described, the Inn had a duty to protect him from foreseeable injury as the result of an automobile accident by insuring that he did not drive and that he did not ride as a passenger with a patron who was similarly impaired." http://pdfserver.amlaw.com/nj/C-View.pdf Previous Next Contact

News PA Court Orders Arbitration in Death Act Case January 8, 2016 < Back Share to: In MacPherson v. Magee Memorial Hospital for Convalescence et al., the Pennsylvania Superior court addressed the applicability of arbitration agreements in a wrongful death action. In September 2009, Richard MacPherson was admitted to Manor Care nursing home facility. A short time later, Richard and Manor Care executed a written arbitration agreement, which provided that any disputes between the parties would be submitted to binding arbitration, and both parties waived the right to trial by judge or jury. After his death, Richard's brother Patrick, as executor of Richard’s estate, brought a lawsuit against various nursing home facilities where Richard had stayed. Manor Care filed preliminary objections seeking to have the case transferred to arbitration, which were denied by the trial court. Manor Care appealed to the superior court to determine whether the arbitration agreement was binding on the executor of the estate. Under Pennsylvania law, courts apply a two-part test to decide if a trial court should compel arbitration. First, the court must determine whether there is a valid agreement to arbitrate. Second, the court must determine if the underlying dispute falls within the scope of the agreement. In reviewing the first prong of the test, the Superior Court noted that both Pennsylvania law and the Federal Arbitration Act embrace a liberal policy favoring arbitration. Applying state-law contract interpretation principles, and recognizing the policies favoring arbitration, the court determined that both Richard MacPherson and Manor Care freely entered into the agreement to submit to binding arbitration. Under the second prong of the test, the court ultimately determined that the underlying dispute fell within the scope of the arbitration agreement, distinguishing the case from Pisano v. Extedicare Homes. In Pisano, the same court previously found that an arbitration agreement entered into by the decedent in a wrongful death action was not binding on the decedent's relative, the plaintiff in the case, because the relative was not a party to the agreement. The Superior Court stated that MacPherson's case was different because it was brought under a different subsection of Pennsylvania's Death Act. The first type of action, allows for specifically delineated beneficiaries--parents, children, and spouses--to recover against those liable for the wrong death of their relative. Pisano fell into this category. The second type of action allows for the personal representative of the decedent, or executor, to recover on behalf of estate of the decedent. Because the executor was the decedent's sibling, which is not one of the recognized beneficiaries under the Death Act, his claim was brought solely as the representative of his brother's estate. Because the estate is the entity capable of recovering, and not another beneficiary, the Court found that the arbitration agreement is binding on the dispute. As such, the applicability of the arbitration agreement in wrongful death actions is going to be determined by what relatives the decedent is survived by. Thanks to Jim Stinsman for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Be Careful What You Wish For (NY) December 21, 2018 < Back Share to: In Karras v Margaret Tietz Ctr. for Nursing Care, Inc. the Court assessed a motion to re-argue a prior decision to dismiss for lack of capacity. The initial suit listed “Marina Karras, as Proposed Administratrix of the Estate of Georgina Goyanes, deceased” as the plaintiff. The Court also amended the initial caption to eliminate the word proposed. Though Courts in New York are often liberal in their allowance to amend and cure defects. However, in this case the Court determined that this initial error could not be cured, as the plaintiff did not have standing the bring the suit, even though it was demonstrated that Marina Karras did eventually gain Letters of Administration and became the administratrix of the estate of Georgina Goyanes. This case serves as an important lesson for litigators who do not specialize in estate work when dealing with a deceased litigant. Often the practice of law leads us to encounter close relatives of our clients, some of which we may work with often. Notwithstanding how inevitable it may seem that a close family member becomes substituted for a client, litigants must allow that process to formalize before taking further action. Similarly, when an adverse party deceases, do not necessarily trust the actions of adverse counsel, as they may have overlooked formalized proceedings and purport to represent someone who they have no fiduciary or legal relation to. Thanks to Christopher Gioia for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Seeing Dollar Signs, A Man Delivers Previously Stolen Warhol Painting To Christie's To Sell February 6, 2008 < Back Share to: After allegedly buying Andy Warhol's 1981 Dollar Sign painting at a New Jersey flea market for $180, Jason Beltrez brought the painting to Christie's auction house to sell. Christie's checked with the Art Loss Register and determined the painting had been stolen from Martin Lawrence Galleries in SoHo on February 14, 1998. The battle now begins as the art gallery is suing Mr. Beltrez for ownership. http://www.nytimes.com/2008/02/06/nyregion/06warhol.html?_r=1&scp=2&sq=warhol&st=nyt&oref=slogin Previous Next Contact

News Unit Owner Sufficiently Alleged Nuisance Claim Against Neighbor For Secondhand Smoke December 9, 2009 < Back Share to: In Ewen v. Maccherone, the plaintiff sued his neighbor claiming negligence and nuisance based on a claim that the cigarette smoke from the neighbor’s apartment had an objectionable odor that invaded his apartment and caused health problems for his infant daughter. The defendant filed a pre-answer motion to dismiss on the grounds that the plaintiff's complaint failed to state a cause of action for nuisance or negligence. The court denied the defendant’s motion, holding that he failed to establish a conclusive defense as a matter of law. Specifically, the court found that the plaintiff's allegation that the secondhand smoke interfered with his "rights, comforts and conveniences" as an apartment owner was enough to establish a claim of nuisance. Further, the court held that the plaintiff's allegation that his daughter became ill and he was forced to evacuate his apartment several times as a result of the smoke was sufficient to establish a claim of negligence. Thanks to Ed Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_52428.htm Previous Next Contact

News Plaintiff Skates Past Assumption of Risk Defense (NY) August 21, 2013 < Back Share to: Most people understand that when you participate in sports, you might get hurt. So in New York, the general law is that “a voluntarily participant in a recreational sporting event has no legal recourse for injuries caused by an occurrence or condition that was a known, apparent, or reasonably foreseeable consequence of such participation.” But the U.S. District Court for the Northern District recently issued a questionable decision in connection with a roller skating accident. In Diaz v. High Rollers Recreational Center, Inc., the plaintiff, while skating, noticed a young man with long hair “skating aggressively and at a higher rate of speed than the other skaters.” The man skated fast while cutting in and out of the path of other skaters, but his conduct was not reported to High Rollers’ staff. Eventually, this unidentified skater struck plaintiff from behind, causing her to fall and injure her ankle. Plaintiff sued High Rollers, claiming that High Rollers failed to properly supervise the skaters and allowed reckless skating. High Rollers argued that plaintiff assumed the risk of skating, and that in any event it provided adequate supervision and was not the proximate cause of plaintiff’s injuries. The judge found that the skater’s conduct was obvious to all at the skating rink, including High Rollers employees, and that a sudden collision is the type of risk typically assumed by skating participants. But the court found that a skater does not assume the risk of another skater’s reckless conduct and that the collision was not sudden but a foreseeable occurrence that could have been avoided with better supervision. Whether the defendant’s supervision was negligent was found to be an issue of fact to be determined by the jury. This type of incident strikes us as a risk typically assumed by skating participants and it seems that the court placed too great an emphasis on the “sudden” nature of the incident. We will continue to monitor this case to see if there is an appeal and if the outcome is any different. Thanks to Steve Kaye for his contribution to this post. If you would like more information, please write to Mike Bono. Previous Next Contact

News Third Circuit Court of Appeals Holds: Clear Language Defining “Occurrence” Matters (PA) October 25, 2019 < Back Share to: Recently, in Sapa Extrusions Inc v Liberty Mutual Insurance Company, the United States Court of Appeals for the Third Circuit was tasked with analyzing whether, under Pennsylvania law, Sapa Extrusions, Inc. (“Sapa”), a manufacturer of “originally coated extruded aluminum profiles”, was entitled to recover from its liability insurers the cost of settling a lawsuit alleging its product was defective. Based on long-standing Pennsylvania precedent, the Court determined coverage under the policies depended on the specific language in the respective policies. The Court’s decision is of particular interest as, Bob Cosgrove, counsel for Amicus Curiae Philadelphia Association of Defense Counsel, submitted an amicus brief providing guidance on the pertinent issue on appeal. By way of background, in 1996, Sapa and Marvin Lumber and Cedar Company and Marvin Windows of Tennessee, Inc. (collectively “Marvin”) entered an agreement requiring Sapa to abide by Marvin’s “Aluminum Extrusion Coating Specification” in its manufacturing process. Between 2000 and 2010, Sapa, in accordance with Marvin’s guidelines, sold approximately 28 million extrusions to Marvin – Marvin incorporated roughly 8.5 million of those extrusions in its windows and doors. Unfortunately, Marvin’s customers began complaining about issues they experienced with Sapa’s extrusions. Marvin, therefore, commenced a lawsuit against Sapa, alleging Sapa failed to adhere to Marvin’s specifications. After years of litigation, Sapa and Marvin finally settled the lawsuit. During the time Sapa supplied extrusions to Marvin, Sapa was insured by eight insurance carriers under twenty-eight commercial general liability policies (“CGL”). Like all CGL policies, these policies required an “occurrence” to trigger coverage – based on the allegations in the underlying lawsuit, the carriers disclaimed coverage to Sapa. In response, Sapa commenced the instant lawsuit against all eight carriers to assert breach of contract claims and seek a declaratory judgment to recover the cost of the underlying settlement. To ascertain whether Sapa was covered under the CGL policies, the Court relied on Pennsylvania’s “Four Corners Rule”, which provides an insurer’s duty to defend and indemnify stems from the factual averments contained in the complaint. Focusing solely on the complaint, the Court analyzed whether, inter alia, Marvin’s allegations of faulty workmanship constituted an “occurrence”, noting he CGL policies generally provided reimbursement to Sapa for “sums that [Sapa] becomes legally obligated to pay as damages because of . . . ‘property damage’ . . . caused by an ‘occurrence[]’”. After reviewing the CGL policies in detail, the Court discovered the CGL policies used one of three definitions. The first group of CGL policies defined “occurrence”, inter alia, as an accident – these CGL policies contained the “Accident Definition”. Since Marvin’s claims in the underlying complaint stemmed from faulty workmanship, the Court held the CGL policies containing this definition did not cover such claims. Essentially, the Court determined Marvin’s allegations did not amount to an unforeseeable, “fortuitous event”. The second group of CGL policies defined “occurrence”, inter alia, as an accident which results in property damage neither expected nor intended form the standpoint of the insured – these CGL policies contained the “Expected/Intended Definition”. The third group of CGL policies defined “occurrence”, inter alia, as injurious exposure, which results in property damage, neither expected or intended from the standpoint of the insured – these CGL policies contained the “Injurious Exposure Definition”. Unlike the Accident Definition, the Court reasoned the Expected/Intended Definition and the Injurious Exposure Definition latter required a subjective-intent standard that was not applied by the District Court. Through this standard, the Court reasoned the Expected/Intended and Injurious Exposure Definitions of “occurrence” were ambiguous. Therefore, to give proper effect to the clear language and terms of the CGL policies containing the Expected/Intended Definition and Injurious Exposure Definition, the Court remanded the matter to the District Court for further consideration. Thanks to Lauren Berenbaum for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News NY City Liable When Police Bust Drug Dealer? April 16, 2012 < Back Share to: A municipality is generally not liable for negligent police protection absent a “special relationship” with the plaintiff. A special relationship can be established if the municipality assumed an affirmative duty to act, had knowledge that inaction could lead to harm, had direct contact between its agents and the injured party, and the injured party justifiably relied on the municipality’s affirmative undertaking. This principle was tested in Matican v. City of New York. The plaintiff had been arrested after purchasing drugs from a certain drug dealer. While in custody, the plaintiff agreed to become a confidential informant to help the police arrest the dealer. The plaintiff did so under the proviso that the police would arrest the dealer under the pretext of an ordinary traffic violation and that, if the dealer made bail and came after the plaintiff, the police would protect him. The next day, the plaintiff called the dealer to meet at their agreed spot. Each time they had met at this spot in the past, the dealer made an illegal U-turn. Instead of living up to the arrangement and stopping the dealer for making an illegal U-turn, the police swarmed the dealer’s car by emerging from three separate police cars. They then tore the car apart, eventually finding the drugs in the dealer’s underwear. When the dealer made bail, he went after the plaintiff for ratting on him. Although the Supreme Court granted summary judgment to the City, the Second Department reversed, finding that there were issues of fact as to whether the City assumed an affirmative duty to (1) protect the plaintiff by concealing his identity when they arrested the dealer, and (2) to protect the plaintiff from retaliation. Thanks to Gabriel Darwick for his submission. Previous Next Contact