News Will Amazon Be On The Hook? Awaiting Important Precedent in PA April 28, 2023 < Back Share to: We are still on watch for a current pending Pennsylvania Supreme Court decision that could impact Amazon’s liability in this case. In Oberdorf v. Amazon.com Inc., 930 F.3d 136, 150 (3d Cir.), reh'g en banc granted, opinion vacated, 936 F.3d 182 (3d Cir. 2019), the plaintiff filed a strict products liability action against Amazon alleging failure to warn and design defect from an allegedly faulty retractable dog collar purchased from a third-party vender on Amazon. In Pennsylvania, the Restatement (Second) of Torts, §402A strict products liability actions extend only to “sellers” of products. The court reasoned that determining whether an entity is a “seller” requires the consideration of multiple factors analyzing the level of control an entity has, such as warranty, title, control sufficient to inspect, economic benefit, and control over design and manufacture. The Third Circuit held that Amazon did meet the criteria of a “seller,” but this holding was nullified when the Third Circuit agreed to hear the case en banc. After the Third Circuit expressed uncertainty over what test to utilize in determining whether Amazon is a “seller,” the Pennsylvania Supreme Court agreed in 2020 to address the following issue: “Under Pennsylvania law, is an e-commerce business, like Amazon, strictly liable for a defective product that was purchased on its platform from a third-party vendor, which product was neither possessed nor owned by the e-commerce business?” Oberdorf v. Amazon.com, Inc., 661 Pa. 535, 237 A.3d 394 (2020). While the Petition for Certification of Law was Granted in 2020, we are still awaiting a schedule for oral argument. However, this could have an immense impact on products liability cases; more specifically on whether Amazon may be exposed to liability for products sold by third parties in Pennsylvania and other jurisdictions. If Amazon is not considered to be a “seller,” liability will fall heavier on sellers, and even sellers who stand in the shoes of a foreign manufacturer in litigation. Thanks to Sarah Polacek for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Not Enough Judges in NJ? May 11, 2012 < Back Share to: Litigation can be slow enough, but, in NJ, it's likely to get even slower. There are as many as 60 judicial vacancies in NJ. This seems unlikely to change in light of NJ's budget deficits and (potentially) Governor's Christie's role as a vice-presidential candidate. As if there wasn't enough to worry about in litigation... For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .   Previous Next Contact

News Second Circuit Vacates District Court and Remands Sandy Case October 31, 2018 < Back Share to: It has been just over six years since Hurricane Sandy made its devastating landfall in New York and New Jersey, causing nearly $70 billion in damages, but Sandy-related insurance litigation is still steadily making its way through the courts. In Madelaine Chocolate Novelties Inc v Great Northern Insurance Company., the Second Circuit Court of Appeals recently held that a potential internal ambiguity in the policy mandated that the District Court’s judgment in favor of the insurer be vacated and remanded for further proceedings. The relevant facts are straightforward: Madelaine Chocolate suffered significant damage caused by the Sandy “storm surge,” the water pushed onto land by the force of the storm winds. Madelaine timely submitted its claim to Great Northern for $40 million in property damage, and $13.5 million in extra operational expenses. Great Northern disclaimed most of the claim on the basis that storm surge damage was excluded from coverage. The Policy contained a ‘Windstorm Endorsement’ that provided coverage for “wind, wind-driven rain, erosion of soil….regardless of any other cause or event that directly or indirectly: contributes concurrently to; or contributed in any sequence to, the loss or damage…,” an anti-concurrent causation clause (“ACC”). Great Northern’s disclaimer, upheld by the District Court, was premised on the Policy’s Flood Exclusion, which states that there is no coverage for “waves, tidal water or tidal waves, rising, overflowing…of any.. body of water or watercourse…, regardless of any other cause or event that directly or indirectly contributes concurrently to, or contributes in any sequence to, the loss or damage.” While the District Court agreed that the Flood Exclusion unambiguously excluded storm surge damage, the Appellate Court disagreed, parsing the lower court’s analysis. First, the Court ruled that the District Court relied on non-precedential opinions to decide that a storm surge can be fairly categorized as a “flood,” noting that the cases relied upon did not include endorsements that added an ACC to the definition of covered peril. Second, the Court found that the District Court’s reliance on several 5th Circuit Katrina cases was also misplaced, as none of the policies at issue in those cases likewise added an ACC to the definition of covered peril insured. The key question on remand is whether or not the ACC clause in the Windstorm Endorsement conflicts with, or creates an ambiguity, with respect to the Flood Exclusion, reminding the District Court to “be mindful of well-established precedents requiring exclusions to be set out in clear and unmistakable language.” ACC clauses have been held ambiguous in certain Katrian cases. As Madelaine Chocolate continues its path through the New York court system, further clarity to these complex coverage questions will continue to inform the way coverage is analyzed, and perhaps how coverage is written, as significant storms become more common. Thanks to Vivian Turetsky for her contribution to this post.       Previous Next Contact

News New York Coverage Action Dismissed On the Basis of Pennsylvania's Sovereign Immunity February 26, 2008 < Back Share to: Kemper issued a General Contractor's Pollution Liability Policy to the Pennsylvania DOT ("PennDOT"), which constructed a major highway in that state. The policy was issued in Pennsylvania and obtained through a Pennsylvania retail broker. During the course of the project, serious enviromental damage occurred in Pennsylvania. Of significance, the policy contained forum selection and choice of law provisions designating New York as the appropriate forum and source of substantive law for any dispute. During post loss coverage negotiations, Kemper filed a declaratory judgment action in New York. PennDOT responded by filing a parallel action in Pennsylvania and eventually moved to dismiss the New York action. The New York court dismissed the declaratory judgment action, recognizing Pennsylvania's sovereign immunity and the limited conditions under which such immunity could be waived. For example, like many states, Pennsylvania and its state agencies could only be sued in the statutorily created Board of Claims. In sum, Pennsylania's sovereign immunity trumped clearly drafted forum selection and choice of law policy provisions. No doubt the court was persuaded that the dispute's limited contacts with New York and Pennsylvania's substantial interest in deciding the issues of coverage tipped the scales in favor of Pennsylvania. http://decisions.courts.state.ny.us/fcas/FCAS_docs/2008JAN/3006001752007002SCIV.pdf Previous Next Contact

News New York's Top Court Upholds Removal Of Niagra Falls Judge Over Ringing Cell Phone June 6, 2008 < Back Share to: The New York State Court Of Appeals unanimously affirmed the removal of Judge Robert Restaino, who jailed 46 people in his courtroom after no one would own up to a ringing cell phone. After the cell phone rang during the Court session, Judge Restaino called each defendant in the courtroom before him and ordered them into custody when they denied knowledge of the cell phone. The Court of Appeals called the punishment of innocent people under the circumstances "inexcusable". http://www.law.com/jsp/article.jsp?id=1202421984572 Previous Next Contact

News ALL BARK NO BITE-A Dangerous Dog Registry is Among the Bills to be Voted on by Nassau County Legislature Next Week (NY) February 12, 2021 < Back Share to: Legislator John Ferretti proposed a bill entitled, "Benny's Law" to help protect people and pets within the community. The bill was inspired after the lawmaker’s 1-year old terrier, Benny, was attacked by a neighbor’s dog. Although the dog who attacked Benny is currently on probation, the Ferretti fears that since the dog was returned to its owners, other incidents between dogs and even humans may occur. Ferretti believes that the dog database proposition, which aims to list all dogs legally deemed dangerous by a Judge, will make all neighbors in the community fully aware of the vicious nature of not only the dog that attacked Benny, but all dangerous dogs alike, and thus, neighbors will start exhibiting the necessary vigilance and caution while within those potentially unsafe zones. The framework of “Benny’s Law” will look similar to that of a sex registry. The proposed dog database will comprise of the dog owner’s address, the date of the incident, and “the pet owner will have to mail a letter to all property owners within 1,000 feet of the home notifying them that the owner’s dog has been deemed dangerous.” In addition to the address and date of incident, the database will also feature more detailed accounts of each dog, such as, the dog’s weight, age, breed, color, and the duration of dangerous dog designation. “Benny’s Law” also recommends that the failure to register the dangerous dog on the database will result in consequences, starting with a $500 fine. The bill is scheduled to be voted on within the next week with legislator’s hopes it is fully enacted and implemented before any future incidents arise. Thanks to Irving Fayman for his contribution to this post. Should you have any questions, please contact Thomas Bracken. Previous Next Contact

News Labor Law Liability Imposed Against Catholic Church (NY) January 3, 2020 < Back Share to: New York’s Labor Law, section 241(6), imposes a nondelegable duty upon an owner and general contractor to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. Ortega v Roman Catholic Diocese of Brooklyn is a prime example of how strict this rule is. In that case, plaintiff was working as a concrete laborer at property owned by Roman Catholic Diocese of Brooklyn. He was injured when the front leg of a three-wheeled compressor gave way, causing a portion of plaintiff’s ring finger to become severed by the bent leg of the compressor. At his deposition, plaintiff testified that the locking mechanism that served to stabilize the front leg and wheel of the compressor had broken about two months before the accident. To remedy it, plaintiff’s boss replaced the broken component with an ordinary screwdriver. The accident occurred when the screwdriver popped out of the locking mechanism as he and coworkers were attempting to the push the compressor up a driveway. The Appellate Division, 2nd Judicial Department, overruled the Kings County trial court’s denial of summary judgment sought by plaintiff. It held that there were violations of the Labor Law, and therefore the owner of the property, Catholic Diocese, was liable for said violations pursuant to Labor Law section 241(6). The fact that Catholic Diocese had nothing to do with fixing the compressor was irrelevant, for the Labor Law imposes a nondelegable duty on landowners to provide a safe working place for workers. Thanks to Mike Noblett for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Too Many Legal Theories Of Liability Spoiled Multi-Million Dollar Judgment (NJ) May 16, 2013 < Back Share to: A hit and run twenty-year old driver severely injured a pedestrian while operating his vehicle with a blood alcohol level of 0.192 percent. The driver had consumed alcohol at an unauthorized after hours pool party at an apartment complex. The apartment’s night time front desk concierge facilitated the party by letting the party-goers into the pool – all against the complex’s policy and training. With only one potential deep pocket, the plaintiff’s attorney got creative with multiple theories of liability against the complex, i.e. social host liability, negligent hiring, and respondeat superior. The result was a $7.4 million judgment in the case of Lau v. Seabring Associates. However, the appellate division found that the blend of theories and resulting jury charge fused disparate theories of liability to the extent that it had no confidence that the jury properly evaluated the various claims. While it did not disturb the damages awarded, it did reverse with instructions for a new trial on liability. On the day of the accident, defendant’s youthful front-desk concierge allowed unauthorized individuals into the building, provided unfettered access to the pool area, and allowed alcohol to be consumed in the pool area, while guarding the closed circuit television surveillance system so that he alone could monitor the pool activities. The complex contended its employee’s actions were violations of its policies and his duties. The trial judge instructed the jury on respondeat superior, social host liability, and negligent hiring. On the issue of respondeat superior, the Appellate Court reasoned that no reasonable juror, when properly instructed could dispute that the defendant’s employee acted outside of the scope of his employment, thereby relieving defendant of liability for the unauthorized actions of its employee. As for social host liability, the Appellate Court noted that the social host liability statute applies only to service of alcohol to adults. Service of alcohol to a minor is governed by common law negligence principles. However, the record was devoid of evidence to impose liability on the complex since it could only be liable through the actions of its employee under respondeat superior, a theory for which the Court had already found no evidential support. Yet, the Court found that there was sufficient evidence to support a negligent hiring claim. It noted that the concierge had recently been promoted from lifeguard and was the youngest person to be hired for that job. The Court reasoned that there was sufficient evidence based upon his inexperience, youth, and lack of training to support a negligent hiring claim. Thus, the court remanded the case for a second trial on liability issues only. Ultimately, the second trial did not go forward due to a high-low settlement agreement entered into between plaintiff and defendant. Special thanks to Emily Kidder for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Dance Like No One is Watching, Email Like it will be Read Aloud in Court (NY) January 10, 2018 < Back Share to: Technological advances often create issues previously undecided by the Courts. The use of email to contact clients, adversaries and the Court has become increasingly popular, but also comes with a host of discovery and confidentiality issues. Recently, in Siras Partners v. Activity Kuafu, (1st Dept. 2018), the First Department heard a case regarding the waiver of attorney-client privilege due to the content of emails sent to third-parties that were produced in discovery. The Court found that by emailing a third party about the advice of his attorney, the defendant waived attorney-client privilege not only as to that email, but as to any and all documents related to the content of the email. While the email was sent before the commencement of the lawsuit itself, the simple fact that advice from the defendant's attorney regarding the substance of the lawsuit was within the email was sufficient to be a waiver of attorney-client privilege. The crux of this issue is the content of communication as well as the recipient of that information. The recipient of the email in the Siras case was a business partner and friend of the individually named defendant, which may have been why the defendant was so quick to email communication with his private counsel. Nevertheless, this decision shows that now, more than ever, it is imperative that attorneys are diligent in monitoring their communication via email and are diligent in warning their clients about the potential pitfalls of sharing confidential and protected information even with their closest family and friends. And frankly, the title of this post also pertains to emails and texts unrelated to litigation. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Rhinestone Jeans: Fashion Statement or Product Defect (NY) August 7, 2013 < Back Share to: In Menna v. Walmart, the infant plaintiff purchased jeans from Walmart with decorative rhinestones. The rhinestones were held in place by metal fasteners inside the jeans. When the infant plaintiff tripped and fell, a metal fastener cut her knee. The plaintiff sued Walmart asserting causes of action for strict products liability, breach of express and implied warranty, and negligent manufacturing. Although the court dismissed most of plaintiff’s causes of action, it found an issue of fact as to whether the jeans were defectively designed. In order to prevail on a motion for summary judgment to dismiss a cause of action for design defect, a defendant must show that the product’s “utility outweighs its inherent danger and demonstrate through expert testimony that it was not feasible to design a safer, similarly effective and reasonably priced product. In Menna, the defendant not only failed to submit an affidavit from an expert, but an employee for Walmart stated in an affidavit that the rhinestones could have been affixed through a heat seal instead of a metal fastener. Special thanks to Gabe Darwick for this contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News A Small Trip On The Subway (NY) November 13, 2020 < Back Share to: Some property owners may think that a defect on their property is so small that it could not possibly lead to a claim or lawsuit. Some claims adjusters may think that a claim with a small defect is de minimus and the case will be thrown out at the end of discovery. This week we highlight a case where a plaintiff sued the New York City Transit Authority when he tripped and fell on a the edge of a stairway near a subway entrance in Queens, New York. At the close of discovery, defendant Transit Authority move for summary judgment dismissal of the claims alleging the defect on the stairs was trivial or de minimus, and so plaintiff’s claim was not actionable. The trial court denied their summary judgment motion, so they appealed to the Second Department. "A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses" (Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 79). In determining whether a defect is trivial, the court must examine all of the facts presented, including the "width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury" (Kavanagh v Archdiocese of the City of N.Y., 152 AD3d 654, 655]; There is no 'minimal dimension test' or per se rule that a defect must be . . . a certain minimum height or depth in order to be actionable" (Trincere v County of Suffolk, 90 NY2d at 977). The case law on de minimus defects is extremely subjective and considers the regularity and appearance of the defect. Here, the Second Department decided to affirm the denial for summary judgment because defendants failed to prove that the protruding edge of the stairway tread on which the plaintiff caught his foot was trivial as a matter of law. The legal conclusion behind this decision is not limited to the Second Department, and all claims adjusters and property owners must be aware that any defect, however trivial or small, may be actionable and lead to a claim that would see a jury at trial. Thanks to Raymond Gonzalez for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Defective Sperm Cannot Support a Product Liability Case in 3rd Circuit. April 8, 2010 < Back Share to: The Third Circuit in Donovan v. Idant Laboratories, has dismissed a products liability suit against a sperm bank. In the suit, plaintiff alleged that the sperm sold by the bank contained genetic defects. Specifically, the sperm was a carrier of Fragile X, a genetic mutation known to cause a group of maladies that include mental retardation and behavioral disorders. The daughter resulting from the sperm donation was diagnosed with the Fragile X defect. The Court found that the claim was essentially a claim for “wrongful life” which is not cognizable under New York law. New York law applied to the case even though the lawsuit itself was filed in federal court in Philadelphia. The Third Circuit wrote that plaintiff’s claims demand “a comparison between the Hobson's choice of life in an impaired state and nonexistence . . . [a] comparison the law is not equipped to make.” The Court concluded: “Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians.” Special thanks to Mendel Simon for his contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.ca3.uscourts.gov/opinarch/093460np.pdf http://www.law.com/jsp/article.jsp?id=1202447538837&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=NW_20100406&kw=3rd%20Circuit%3A%20Defective%20Sperm%20Can't%20Be%20Basis%20for%20Products%20Liability%20Suit Previous Next Contact