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News Education Doesn't End with High School At Group Home for Charitable Immunity Act in NJ December 16, 2010 < Back Share to: “A rose by any other name would smell as sweet.” Yet, when it comes to application of the Charitable Immunity Act every effort is made to re-label and rename the essential nature of an eligible organization to avoid the immunity offered. In a tragic case involving the death of a developmentally disabled young resident of a community group home, his estate tried to portray the home as other than an educational organization. The decedent had been a resident from age eight to twenty-one. He had attended elementary and secondary education with the program. Even after attaining the age of eighteen, he was still subject to an Individual Habilitation Plan that addressed his continuing life skills development. This Plan included a goal with respect to small convenience store purchases. It was during an outing to a convenience store that the decedent choked on a bagel, which ultimately resulted in his death. Despite arguments that the educational scope of the organization should be limited in time to when the decedent attended school, the Court found as a matter of law that his continued participation in life skills training fell within the home’s educational mission. However, since the organization’s by-laws listed its organizational purpose as exclusively “charitable,” the Court also looked at the home’s entitlement to immunity under this more generic qualifier. While an exclusively “educational” organization need not prove its “charitable” status through funding information, this is not so for a more broadly defined charitable organization. Although the organization raised less than 2% of its revenue from charitable donations (about $1.1 million), the court disagreed that a pre-set revenue percentage factor would be determinative of the charitable status of the organization. The Court concluded that the combination of educational and charitable elements for the group home clearly placed it within the ambit of the Act. See Komninos v. Bancroft Neurohealth, Inc., http://www.judiciary.state.nj.us/opinions/a4041-09.pdf If you would like more information, please contact Denise Ricci at dricci@wcmlaw.com Previous Next Contact

News This and That: January 6, 2017 < Back Share to: One of my law school professors said this: “Every lawyer should read three newspapers each day: The New York Times -- to get a perspective on world affairs; the Wall Street Journal—to get a perspective on the global financial markets; and finally (comic pause) The New York Post-- to get the true perspective.” The life of the law is not only told in the decisions we write about but in everything we confront. As Tennyson’s Ulysses said, “I am a part of all that I have met.” And so, from time to time, in This and That, I hope to share something of interest I have met along the way. Recently, I participated in an insurance law panel sponsored by the Federal Bar Association, and I had the great pleasure of spending time with Judge Gerald Rosen who was the architect of the Grand Bargain which saved Detroit from bankruptcy. With Candor, Courage and Creativity, the 3 C’s in Judge Rosen’s words, he found a way to monetize the assets of the Detroit Institute of Art through private philanthropy and spare the pensioners of that great city what would have been intolerable cuts in their life’s savings. It’s an amazing story. Google it and soon look for Judge Rosen’s book on the Grand Bargain. But, as it always happens, our discussion turned from law to other passions. And ours happened to be golf and our mutual admiration of Bobby Jones, the greatest American amateur golfer—and a practicing lawyer. But I always wondered how Jones could put the law books away and spend weeks competing in Open Championships. So, I decided to read about Jones. And I think I found the answer. The anchor client of the firm founded by Jones’s father was Coca Cola! But even so, to compete and win against the very best professionals and amateurs of the day after months of laboring at law is a marvel for the ages. My favorite quote about golf comes from Jones: “Golf does not build character, it reveals character.” And that’s it for this, This and That. If you have any comments about this post, please call or email Dennis at dwade@wcmlaw.com .   Previous Next Contact

News Consideration of Liability Under Dog Bite Statute Includes Charging and Growling (NY) January 3, 2019 < Back Share to: Although New York is a “one bite” state – meaning to recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog . . . knew or should have known of such propensities” and vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation. However, there are other actions that a dog might show that demonstrate “vicious propensities” without resorting to actual biting as shown below. In Meka v. Pufpaff, plaintiff brought an action to recover damages for injuries allegedly sustained as a result of the vicious propensities of defendants' dogs. Plaintiff was walking her dog, when defendants’ dogs approached them. According to plaintiff's deposition testimony, one dog came toward her at a “full run” and began “biting” plaintiff’s dog’s neck. Plaintiff lost her balance, fell over one of the dogs, and dropped to the curb, fracturing her arm. Both defendants and plaintiff moved for summary judgment and the lower court denied both motions. Both parties appealed the decision and the Appellate Division, Fourth Department upheld the lower court decision as to the vicarious liability portion of the complaint, but granted defendants’ motion for summary judgment as to negligence. Defendants contended on their appeal that Supreme Court erred in denying their motion with respect to the strict liability cause of action because their dogs had not demonstrated vicious propensities prior to the subject incident. However, per the deposition testimony, the Court held that “a known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendant[ ] liable for damages resulting from such an act.” There was deposition testimony of a neighbor, who testified that one day, when she was walking her dog past defendants' house, defendants’ dogs growled and “came charging” at them, thus raising an issue of fact. Finally, the Court held that a claim for ordinary negligence does not lie against the person responsible for a dog that causes injury and thus dismissed that portion of the plaintiff’s complaint. Thanks to Paul Vitale for his contribution to this post. Previous Next Contact

News Is Your Car Safe in the Parking Lot? An Interesting Case in Property Damage March 23, 2016 < Back Share to: A night out at the movies is a favorite activity for many. Have you ever considered what would happen if you came out of a movie only to find that your car had sustained serious damage while it was sitting in the parking lot? Your initial reaction might be to blame the movie theater. You might think that the theater had a responsibility to ensure the safety of your vehicle. New York Courts however have provided some insight about this issue and why the owner of a movie theater parking lot does not have a duty to protect your car. In the recent case of Smith v. Regal Entertainment, plaintiff sued the owner/operator of a movie theater and adjacent self-service parking lot for damages her car sustained while she was at a movie. She claimed defendant was negligent in failing to maintain an appropriate level of security in the parking lot. Defendant argued it was not liable because no bailment relationship was created between the parties. A bailment is defined as “the delivery of personal property for a particular purpose under an express or implied contract with the understanding that it shall be redelivered to the person delivering it, or kept until he reclaims it after fulfillment of the purposes for which it was delivered.” The Court explained that when the bailor (the transferor) does not relinquish possession, control and dominion of the property to the bailee, no bailment exists. Further, the Court reasoned that since the plaintiff “did not relinquish possession or control of her vehicle at any time, as she could enter and exit the lot without supervision, select her own parking space, lock her own car, and retain the keys, no bailor-bailee relationship was created.” Even though plaintiff payed for her ticket to the movies and the defendant benefitted by her business, this transaction did not constitute sufficient consideration to find that a bailment relationship existed since “the essence of consideration is relinquishment of dominion and control.” Therefore, the Court held that since no bailment relationship existed, the defendant was not liable for damages to the plaintiff’s car. Property damage claims can sometimes come down to this issue of whether a bailment relationship has been established. This is especially so when the damage occurs while the property owner does not have possession of the property. However, defendants should note that if the property owner has not clearly relinquished control, possession, and dominion of the property to the defendant, there can be no bailment relationship. In these types of cases, where there is no bailment, defendants may seek to have the property damage claims dismissed. Thanks to Jeremy Seeman for his contribution to this post. Previous Next Contact

News A New York Lloyd's? July 8, 2008 < Back Share to: Details are sketchy and many issues must still be worked out, but the recreation of the New York Insurance Exchange is in the works. If all goes according to plan, the Exchange will re-open in the next 18 months. The question is -- will pubs and coffee houses follow? http://www.insurancejournal.com/news/national/2008/07/08/91689.htm?print=1 Previous Next Contact

News Property Owner Is At The Root Of The Problem, Not the City of New York October 22, 2021 < Back Share to: We present a case this week highlighting the liability of sidewalk maintenance between the City of New York and an abutting property owner. In Konstantinos Gallis v. 23-21 33 Rd., LLC, 2021 NY Slip Op 05549 (2d Dept. 2021), the plaintiff claimed personal injury after he tripped and fell on a raised part of sidewalk. The location of the fall was next to a tree owned by the City of New York. Plaintiff alleged the tree roots had raised the sidewalk allegedly causing the hazard. The premises owner 23-21 33 Road LLC defaulted on the Complaint, and plaintiff sought summary judgment on liability against the City of New York alleging the City allowed for the tree roots to grow and cause the hazard ultimately leading to plaintiff’s injury. The trial court denied the plaintiff’s motion and the Second Department affirmed that decision. The Second Department re-affirmed Administrative Code §7-210 and its precedent which shifts liability for defective sidewalk conditions from the City to the abutting property owner. Importantly, Administrative Code §7-210 covers any defects involving the negligent failure to repair or replace defective sidewalk flags, and failure to remove snow, dirt, or other materials from the sidewalk. The court determined the defective sidewalk conditions caused by growing tree roots is covered under Administrative Code §7-210 and noted an abutting property owner may cut or remove tree roots to repair sidewalks after obtaining permission from the City. Also important in the Second Department’s decision is that the exemption of Administrative Code §7-210 under subsection (b) allows for the City to be held liable if the property is “in whole or in part, owner occupied” and used for “exclusive residential purposes.” The reasoning behind this exemption is that the City should only be allowed to shift the burden of sidewalk defects to commercial properties and not “small residential properties” who would not have the resources for constant monitoring and repair of the sidewalk. This case highlights the specific variables wherein the City of New York can and cannot be held liable for any sidewalk defect or defect caused by inclement weather abutting a property owner’s building under almost any circumstances. The liability for a defect on the sidewalk is almost always shifted to the abutting property owner, and the caveat exception would apply to residential properties which are at least in part owner occupied. Thus, any commercial property owner should constantly monitor their sidewalks, and in the event of a defect caused by a tree, they should immediately contact the City of New York for permission to rectify the defect. Thanks to Raymond Gonzalez for his contribution to this article. Should you have any questions, please contact Thomas Bracken. Previous Next Contact

News The FSMA: There's Power, But Is There Will? November 8, 2011 < Back Share to: It is a basic tenet of policy and politics that there is a difference between having power and being willing to use it. The FSMA appears caught in the midst of just such a difference. The FSMA legislation (which surprisingly was passed with broad bipartisan support just last December) gave the FDA broad new powers, but it now appears that current Congress is unwilling to let those powers be used. The evidence for this claim can be found in the fact that a proposed Republican 2012 budget suggests on cutting the FDA's budget by 11.5%. Such a cut is inconsistent with the staffing growth necessary to implement the legislation's goals. Something will have to give if the FDA is actually going to be able to use the powers it has been given. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Defendants Strike Out On Appeal For Summary Judgment On Alleged Baseball Field Negligence (NY) June 18, 2020 < Back Share to: In Morace v. Commack North Baseball Clubs Inc., the infant plaintiff was at baseball practice when his coach hit a ball to him. As the infant plaintiff raced to catch the ball, he allegedly fell and sustained injuries after encountering a hole at the location of a sprinkler head. A lawsuit was filed against the Town of Smithtown and Commack Baseball. Both defendants moved for summary judgment; however, the lower court denied the motions. These appeals ensued. The Appellate Division, Second Department upheld the lower court decision as they held both defendants failed to establish their prima facie entitlement to judgment as a matter of law on the ground that the plaintiffs were unable to identify the cause of the infant plaintiff's accident nor as a matter of law on the ground that the infant plaintiff assumed the risk of his injuries. The Town, which owned the ballpark, did not establish its prima facie entitlement that it lacked notice of the condition alleged. Moreover, Commack Baseball failed to demonstrate that Commack Baseball provided adequate supervision of the infant plaintiff on the date of the subject accident or that a lack of adequate supervision was not a proximate cause of the infant plaintiff's injuries. Thanks to Paul Vitale for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Court Resists Urge to Assault English Language, and Enforces Assault Exclusion (NY) May 5, 2017 < Back Share to: Insurers are well aware of the length courts go to in declining to enforce intentional acts exclusions. Even in cases where the intentional nature of alleged misconduct is obvious, courts often refuse to apply intentional acts exclusions. While the reasoning is often artfully worded, the logic often goes something like this - - “well, the defendant may have intended to set that house on fire, but he may not have. Exclusion inapplicable." The Third Department recently resisted this approach in Graytwig v. Dryden. There, the insured was the owner of a bar whose employee allegedly injured a claimant when he forcibly ejected him from a bar. In the underlying action, the claimant alleged that he suffered injuries when the insured’s employee put him in a headlock and pushed him onto an icy sidewalk, where he allegedly hit his head. The insured sought coverage under his policy, which contained an assault exclusion. The exclusion, which stated it was “subject to the terms contained in the General Liability Coverage,” provided that “notwithstanding anything contained herein to the contrary…this policy excludes any and all claims arising out of assault, battery, fight, altercation, or similar misconduct…” The insured argued the exclusion was inapplicable because it was subject to the terms contained in the policy’s general liability coverage. The court rejected this "attempted assault" on the English language, based on the fact the exclusion contained the words “notwithstanding anything contained herein to the contrary.” The insured also argued the assault exclusion was inapplicable because the insured could be held liable under a negligence theory, the implication being that assault is an intentional tort. The court also rejected this argument, based on the reasoning that no cause of action would exist but for the alleged assault. Thus, there was no coverage. Negligence theories can often defeat intentional acts exclusions, but that often isn’t the case when the theory is assault, and the exclusion is specific. An exclusion generally referring to intent is often insufficient, but Graytwig is an excellent reminder that exclusions are more likely to apply when they are specific. Thanks to Michael Gauvin for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Court Restricts Restrictive Covenant in Employment Contract (PA) May 12, 2016 < Back Share to: In Lehigh Anesthesia Association vs. Mellon, a Philadelphia Superior Court issued an opinion on appeal, granting summary judgment on behalf of a nurse, Michael Mellon, who had been sued by his former employer for violation of a restrictive covenant in his employment agreement. Michael Mellon began working for Lehigh Anesthesia Association in 2001 as a certified nurse anesthetist. His employment agreement contained a restrictive covenant that prohibited him from working for any entity that had entered into a contract with LAA within four years prior to termination of his employment agreement. Although the covenant did not bar Mellon as to geographic area, it limited his ability to render services to any of the defined clients for up to two years after termination. In May 2012, LAA terminated Mellon’s employment based on complaints of poor work performance and behavior. Mellon thereafter began working for Professional Anesthesia Consultants, which provided services to Carlisle Endoscopy Center, a client of LAA from 2001-2011. LAA filed a complaint alleging a breach of its restrictive covenant against Mellon on February 28, 2013. In Pennsylvania, for a restrictive covenant to limit competition to be enforceable: it “must be: (1) ancillary to the employment relationship; (2) reasonably necessary for the protection of the employer; and (3) reasonable in duration and geographic reach.” Agreements are considered ancillary if they pertain to the employment relationship. So long as the employment restriction is “an auxiliary part of the taking of employment and not a later attempt to impose additional restrictions on an unsuspecting employee, such a covenant is supported by valid consideration and is therefore enforceable.” In Pennsylvania, post-employment restrictive covenants are subject to a higher level of scrutiny. Under this the additional scrutiny, reasonableness is determined by whether a covenant is necessary to protect particular business interests such as trade secrets or highly specialized employee training by an employee; the protection must extend beyond the mere elimination of competition. In affirming summary judgment for Mellon, an appeals court held that the covenant was broader than necessary to protect LAA’s business interests and placed an undue hardship on the nurse in finding future employment. Notably, the lack of geographic scope added to the over-breadth of the covenant, and the court found that LAA’s broad interpretation of the term clients to include any entities with whom LAA had contracted within two years of termination, would unduly restrict the nurse’s potential employers. Thanks to Sathima Jones for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Settlement with Insurer Not a Basis for Dismissal of Claims Against Brokers March 22, 2018 < Back Share to: In Prime Alliance Group Ltd v Affiliated FM Insurance Company, the insured, was the owner of a mixed use condominium and retail property in Manhattan. The Property suffered significant flood damage during Superstorm Sandy in October 2012, and a claim (for upwards of $30M) was made to Affiliated. Following Affiliated disclaimer of coverage for the property damage (the bulk of the claim), Prime Alliance sued alleging claims of breach of contract, bad faith and estoppel as against Affiliated, and claims of negligence and breach of contract against their retail insurance broker, Praxis, and claims of negligence against HUB, the wholesale insurance broker. The claims asserted against HUB and Praxis were premised on the brokers’ alleged failure to procure adequate and requested insurance coverage. Praxis and HUB moved to dismiss on the basis that a settlement reached between Prime Alliance and Affiliated mooted the separate claims against the broker defendants. The lower court granted the motion since the insurer that settled with the Plaintiff and was no longer a party to the action, “and Affiliated is the only party which could (or would) raise a defense that the contract did not provide the flood coverage at issue, there can be no finding in this case contrary to plaintiff’s claim that the disputed coverage did in fact exist. Thus, there can be no finding that Praxis [or HUB] was responsible for a lack of coverage.” The Appellate Court disagreed, finding that Affiliated’s settlement with plaintiff left the question of the validity of its disclaimer entirely undecided, and provided no basis for the motions to dismiss and for summary judgment filed by the broker defendants. Putting a fine point on the matter, the Appellate Division specifically stated that the decisions granting both the Praxis and HUB motions were based “on the incorrect premise that the plaintiffs’ settlement with Affiliated precluded the plaintiffs from pursuing their causes of action to recover damages for failure to procure insurance.” The matter was to be reinstated in the New York Supreme Court for adjudication. In the short term, this decision provides a sound argument to rebut an argument that a plaintiff’s settlement with their insurer effectively moots any claims for negligence asserted against brokers. Thanks to Vivian Turetsky for her contribution to this post.   Previous Next Contact

News Insurer Benefits from New Jersey Appellate Division’s Reading of Assault and Battery Exclusion (NJ) September 4, 2020 < Back Share to: In Pickett v. Moore’s Lounge, the Appellate Division had to interpret an assault and battery exclusion set forth in a tavern’s CGL insurance policy. A patron of Moore’s had shot and killed Roger Pickett while at the tavern after a verbal fight. The Estate of Pickett filed a seven-count complaint against the tavern, including claims of wrongful death, a violation of a liquor statute, negligent management of employees, negligent hiring, negligent training and negligent retention of tavern employees who allegedly caused the incident. The insurer denied coverage under the assault and battery exclusion. The tavern then settled plaintiff’s claim but sought indemnity from its insurer. The Assault and Battery exclusion provided a justification for the insurer to deny coverage because the injuries sustained by Pickett arose out of any act of assault or battery committed by any person, including any act or omission in connection with the prevention or suppression of such assault or battery. The Appellate Division held that the exclusion was unambiguous and would, therefore, be enforced. The exclusion plainly encompassed negligent acts or omissions that failed to prevent or suppress the assault or battery. This embraced the estate’s general allegation that the tavern negligently failed to exercise reasonable care to assure the tavern was a safe place. This case illustrates the importance of closely scrutinizing the wording of an assault and battery exclusion in a policy, as these exclusions are not one size fits all. Thanks to Mike Noblett for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact