News An Owner's Lack Of Supervisory Control Is Not A Defense In A NY Labor Law § 200 Claim November 29, 2012 < Back Share to: In Raffa v. The City of New York, the plaintiff was injured when he slipped and fell on a sheet of ice at a construction site, while walking from his car to a construction trailer. The plaintiff testified that two days prior to the accident, he complained to the foreman and superintendent about snow and ice covering the area where he fell. Additionally, the day prior to the plaintiff's accident, the project manager was notified that another worker slipped and fell on ice in that area. The plaintiff sued the owner of the property, the City of New York, and the general contractor, U.R.S. Corp. under Labor Law § 200 and common law negligence in the Supreme Court, Bronx County. The City of New York moved for summary judgment on the grounds that as an owner, it had no supervisory control of the plaintiff or control over the means, methods or materials used in the work. The court agreed and granted the City of New York's motion. On appeal the Appellate Division, First Department reversed the lower court's decision. The First Department held that because the plaintiff's Labor Law § 200 and common law negligence claims are based on a dangerous condition on the site, not on the means, methods or materials used in the work, the only issue was whether the City of New York had notice of the condition, not whether it excercised supervisory control over the manner of performance of plaintiff's work. Thus, there was a question of fact as to whether the City of New York had actual or constructive notice of the icy condition that caused the plaintiff's accident. Thanks to Ed Lomena for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News NY Court Of Appeals Sends Shocks Through Labor Law 240(1) Claim November 23, 2016 < Back Share to: We previously reported on the appellate decision of Nazario v. 222 Broadway, LLC, in which the First Department held, over a strong dissent from Justice Tom, that a plaintiff who falls from an A-frame latter after receiving an electric shock from a light fixture he was removing had established a prima facie case that his ladder provided him with inadequate protection. The First Department reasoned that because the ladder was not secured so as to prevent it from falling over if plaintiff was shocked while working, the unsecured ladder was a violation of the Labor Law and the proximate cause of plaintiff’s injuries. Justice Tom, by contrast, believed that the First Department was straying too far from established Court of Appeals precedent and their sister Departments, all of whom have held that falling from an A-frame ladder after receiving an electric shock, by itself, is insufficient to establish liability as a matter of law. In Nazario v. 222 Broadway, LLC, the Court of Appeals adopted Justice Tom’s dissent without saying so in so many words. The Court determined that questions of fact existed as to whether the A-frame ladder in question failed to provide plaintiff with the necessary protection, and whether plaintiff should have been given additional or alternative safety devices. The Court cited to its earlier decision in Blake v. Neighborhood Hous. Servs. Of N.Y. City for further guidance. Sharp-eyed readers will note that Justice Tom had warned his fellow panel members that their decision had departed too far from the Court’s Blake decision, and that the appellate court needed additional evidence concerning whether the ladder was defective or whether additional safety devices were necessary before granting summary judgment to plaintiff. While we await a new decision from the First Department concerning whether additional safety measures were necessary or would have prevented plaintiff’s injury, the Court of Appeals has clearly signaled that it does not believe that falling from a ladder after receiving an electric shock, alone, establishes a Labor Law § 240(1) claim. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Wrong Accident Location... No Problem for Plaintiff (NY) February 16, 2017 < Back Share to: The plaintiff commenced a personal injury action for injuries allegedly sustained by him in connection with a construction accident that occurred in Nassau County, New York. In Hartnagel v FTW Contracting, the plaintiff alleged that the accident occurred while he was performing work at 50 North Road in Great Neck, NY. The defendant contractor moved to dismiss the complaint on the basis that it had never performed any work at the specified location. To this end, the defendant CEO submitted a certification with the contract that confirmed work was performed at 48 North Road. Whereupon, the plaintiff cross-moved for leave to amend the complaint to change the alleged location of the accident from 50 North Road to 48 North Road. The trial court granted the plaintiff's cross motion and denied defendant’s. On appeal, the Second Department held that the Supreme Court providently exercised its discretion in granting the plaintiff's cross motion for leave to amend the complaint, as his proposed amendments were neither palpably insufficient nor patently devoid of merit, and did not prejudice or surprise any defendant. Since the amended complaint alleged that the accident location was actually 48 North Road, where Metropolitan admittedly performed work as the general contractor, the motion to dismiss the complaint was properly denied. The Second Department also denied the defendants' motion to dismiss the claim against its individually named CEO. In order to win a CPLR 3211 motion based upon documentary evidence, a movant must submit evidence that utterly refutes plaintiff's factual allegations and conclusively establishes a defense as a matter of law. To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity and, as such, affidavits and letters are not considered documentary evidence. The court added that "[A]ffidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action.” Because Corporate officers "may be held personally liable for torts committed in the performance of their corporate duties" (Lido Beach Towers v. Denis A. Miller Ins. Agency, Inc., 128 A.D.3d 1025 at 1026), and because the CEO’s affidavit in support of the motion did not conclusively establish that [the plaintiff] has no cause of action. The court may only consider evidence in support of a 3122 motion to determine whether the plaintiff "has a cause of action, not whether he has stated one". The court’s review of evidence is stricter under CPLR 3211. Documentary evidence must conclusively refute the facts alleged in the complaint or the case will survive attack at this stage. An affidavit of someone with personal knowledge will almost never warrant dismissal under this statute. Defense counsel should be sure to balance whether the best result can be achieved later, upon a motion for summary judgment, rather than early on given the sufficiency of the documentary evidence. Often, the sworn depositions will support such a motion later. Another tactic that might have been employed is negotiation: A dismissal of the CEO in exchange for a consent amendment of the complaint would have saved the cost of two motions and an appeal and would have allowed the matter to march toward to a conclusion. There are no facts in the decision that establish that negotiation was not attempted, but the case can be an example of the benefits or advantages of skilled negotiation driven by strategy decisions. Thanks to Vincent Terrasi for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News NY Venue Statute For Personal Injury Actions Amended October 25, 2017 < Back Share to: The New York Assembly proposed Assembly Bill A8032 (an adoption of Senate Bill S6031) which amends the State venue statute for personal injury actions. The Bill was passed in both the Assembly and Senate in June, and signed into law by Governor Cuomo on October 23, 2017. The law is effective immediately. The law amends CPLR Section 503 which designates venue as the county in which any one of the parties resides when the action is commenced, or in the county of plaintiff’s designation if none of the parties lives within the State. The new law adds the following key section “the county in which a substantial part of the events or omissions giving rise to the claim occurred”. For example, in a case involving a motor vehicle accident which occurred in Kings County between residents of Nassau and Westchester Counties, plaintiff was previously allowed to file the action in Nassau or Westchester County. Now, plaintiff can choose between Nassau, Westchester, OR Kings County. This amendment expands upon plaintiff’s already unilateral right to choose the venue in personal injury and property damage actions. The justification of the bi-partisan supported bill was to give the Courts and jurors of communities with the most interest in setting community standards the ability to hear such controversies. In addition, witnesses are more likely to be located in the county where the events that are the subject of the action occurred. It will be interesting to see how case law develops, and to see if the Courts constrain the provision in circumstances where none of the justifications are met and the selection of venue appears to be merely a facet of venue shopping. Thanks to Christopher Gioia for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News CY Pres - Enforcing an Unsigned Settlement Release (PA) August 28, 2020 < Back Share to: The Western District of Pennsylvania recently determined that the absence of a signature did not void the underlying settlement agreement in a class action lawsuit. In Abramson, et al. v. Agentra LLC, et al., the District Court granted the plaintiffs’ motion to enforce class action settlement after the parties reached an oral agreement and a Joint Status Report Regarding Class Action Settlement was filed with the District Court. The lawsuit involved a class action alleging that Agentra LLC (“Agentra”) participated in making pre-recorded telemarketing calls to cellular telephone numbers in order to advertise Agentra’s goods and services. The plaintiffs argued that this was a clear violation of the Telephone Consumer Protection Act (“TCPA”). The plaintiffs and Agentra participated in a private mediation and reached an oral settlement agreement shortly thereafter. Specifically, the oral settlement agreement required Agentra to establish a fund of $275,000.00 from which payments would be made to class members and which would be used to fund other matters including administrative costs, service awards, and attorneys’ fees. Following the oral negotiation, plaintiffs provided a first draft of a written settlement agreement, as well as documents related to the settlement, to Agentra. The parties exchanged numerous e-mail correspondence thereafter, including an e-mail from Agentra with minor redlines to the written agreement. Agentra also brought up the issue of cy pres and later provided an agent list to plaintiffs. After receiving the agent list, plaintiffs sent the final version of the settlement agreement to Agentra which was never formally executed. Additionally, at this time, the parties filed a Joint Status Report Regarding Class Action Settlement which indicated that “a class action settlement is agreed upon and with their respective clients for signature.” Ultimately, Agentra failed to sign the settlement agreement and disputed that the parties reached a binding agreement. However, no evidence was presented that Agentra communicated any dispute about the final settlement agreement draft or that any other material matter remained in dispute. Additionally, the issue of Cy Pres appeared to be resolved after the parties exchanged the agent list and Agentra made no further communications surrounding the Cy Pres issue. The District Court looked to contract law in order to determine whether the settlement agreement was enforceable. Essentially, the District Court determined that the record revealed that there were no material facts in dispute regarding the existence of terms of an agreement to settle. The District Court noted that “the uncontroverted evidence confirms that after reaching an oral agreement, the parties reduced their oral agreement to writing and addressed any remaining material issues.” The District Court also stated that the best evidence that a final agreement was reached was the filing of the Joint Status Report Regarding Class Action Settlement. As such, the Court held that the absence of the signature, alone, did not make the settlement agreement unenforceable and granted plaintiffs’ motion to enforce settlement. Thanks to Zhanna Dubinsky for this post. Please feel free to contact Vincent Terrasi with any questions or comments. Previous Next Contact

News Pending Criminal Case Allows Insurer to Delay Coverage Decision (PA) October 17, 2013 < Back Share to: A pending criminal investigation or prosecution often complicates an insurer's efforts to adjust the related insurance claim, and a Pennsylvania court recently held that a criminal investigation or prosecution could provide a reasonable basis for the delay of a coverage determination. In Atwood v. State Farm, the plaintiff's home was insured by State Farm. In February of 2012, federal authorities, led by the Drug Enforcement Agency (DEA) knocked down the door of the plaintiff’s home and the plaintiff and his family temporarily fled to avoid arrest. During the time that they were absent, the home remained unsecured due to the front door having been knocked down. Multiple thefts and vandalisms occurred within the home, as well as a fire in March of 2012. In May of 2012, plaintiff, his wife and his parents were arrested in Colorado and criminal proceedings were commenced against the plaintiff in the Middle District of Pennsylvania. The plaintiff made a claim for the damages sustained to his home but State Farm was unable to reach a coverage determination on the claim due to the related criminal proceedings, including a restraining order filed by prosecutor's regarding disbursement of any insurance proceeds. Plaintiff then sued State Farm, alleging breach of contract and bad faith. The court noted that to show bad faith, a plaintiff must either demonstrate that the insurer lacked a reasonable basis for denying benefits and knew or recklessly disregarded its lack of reasonable basis. Given that State Farm had not yet reached a determination on the plaintiff’s claims, those standards were not met. The court further noted that while a plaintiff may also make a claim for bad faith if the insurer does not display a good faith investigation into the claim or fails to communicate with the client, those elements did not exist here because the reason for the insurer’s inaction was a pending criminal proceeding that prohibited the insurer from full access to investigate the property. As a result, the court granted State Farm's motion to dismiss. Thanks to Thalia Staikos for her contribution to this post. If you would like more information please write to Mike Bono. Previous Next Contact

News Plaintiff's Comparative Negligence Not Admissible In A Strict Liability Action (PA) January 6, 2023 < Back Share to: In Cote v. Schnell Industries, 2022 WL 16814032 (M.D. Pa. Nov. 8. 2022), Cote was injured while working at a transfer yard moving sand used in “fracking” operations from railcars to tractor-trailers for delivery to fracking customers. When Cote reached his hand into a piece of equipment to dislodge the wet sand so the sand could be properly transported onto the conveyor belt, his co-worker simultaneously activated the machine’s “power take off” lever, which slammed a gate shut and nearly severed Cote’s hand. The defendant equipment manufacturer argued that Cote acted negligently because “he knew of the danger posed by putting his hand through the [gate] while the machine was energized.” Defendant’s theory related directly to the alleged product. Cote argued that the equipment was defective because “it cannot isolate, deenergize and lockout its [power take off lever] so that workers can safely unload jammed sand . . . without risk of the door closing.” The court granted Cote’s motion in limine, holding that defendant was precluded from arguing that Cote’s negligence caused the accident. The Court reasoned that because Cote’s alleged negligence “cannot be causally distinguished from the elements of the [equipment] Cote considers defective, [defendant] is unable to show ‘that none of the alleged product defects contributed in any way to the accident.’” This case stands for the proposition that a plaintiff’s conduct in a products liability case is relevant only if the conduct was the sole cause of the accident and unrelated to the alleged defect. Thanks to Sarah Polacek for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Broken Hip doesn't Break the Bank (Federal, PA) October 19, 2016 < Back Share to: The Third Circuit recently upheld a pretrial win for Zimmer Holdings Inc. over claims launched by a patient who sued the medical device maker after his hip replacement broke in Kline v. Zimmer Holdings, Inc. In affirming, the Court found that there was no showing that Zimmer acted unreasonably in designing the product or warning. On January 13, 2010, Gregory Kline underwent a total hip replacement. His surgeon implanted a Femoral Stem with Kinectiv Technology. On April 6, 2011, Kline’s hip replacement stem fractured at the neck. Kline sued Zimmer Holdings Inc., Zimmer Inc., and Zimmer United States Inc. (collectively, “Zimmer”), alleging several state-law product liability claims. By the time the case reached summary judgment, Kline’s only remaining claims were negligent design defect and negligent failure to warn. The District Court granted summary judgment to Zimmer on all counts. On appeal, the Third Circuit affirmed the judgment of the District Court because Kline failed to show that a reasonable jury could find that any unreasonable act or omission by Zimmer caused him harm. In support of his position, Klein argued that the failure of the Zimmer device in another patient treated by Kline’s doctor was key to proving his claims for negligent design defect and negligent failure to warn. However, the Court held that evidence regarding the other patient’s device failure was not admissible because it did not involve the same product under similar circumstances, nor did it (1) show notice to the defendant of the danger, (2) show the existence of the danger, or (3) show the cause of the accident. With respect to Kline’s claim for negligent failure to warn, Kline’s theory, supported by Zimmer’s experts, was that an individual of Kline’s weight or body mass index who engaged in vigorous activity was at a higher risk of device failure. However, as Kline acknowledged, a package insert for Zimmer’s device warned about those risks, at least in general terms. Accordingly, there was no evidence in the record that the risk was of a magnitude to require a contraindication at any specific weight, body mass index, or activity level, except that the device broke in Kline. Kline’s failure to prevail only goes to show that plaintiff’s counsel must still be able to prove that the product in question is in fact defective when that product fails, as opposed to inadvertent product failure. Thanks to Hillary Ladov for her contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News A Staircase Lobby Does Not Necessarily Need a Handrail May 28, 2010 < Back Share to: In Remes v. 513 W. 26th Realty, LLC, the plaintiff was injured when she took a step backward and fell down two steps from the defendant's lobby into a smaller room where mailboxes were located. The staircase did not have a handrail. The court held that the owner made a prima facie showing that the stairway area did not constitute a hazardous condition. The plaintiff countered that the Administrative Code requires handrails on all interior stairs that serve as an exit to the building. This argument failed because the court found that the subject stairs did not serve as an exit. Thus, photographs of the staircase, coupled with deposition testimony that establishes (1) no prior similar incidents had occurred; and (2) lights illuminated the stairs is sufficient to establish entitlement to summary judgment. http://www.nycourts.gov/reporter/3dseries/2010/2010_04520.htm Posted by Bill Kirrane. Previous Next Contact

News Sand traps and Other Litigation Hazards (NY) August 2, 2017 < Back Share to: John MacIsaac was walking from the 12th green to the 13th tee box on a public golf course at Eisenhower Park when he tripped on a sprinkler system coupling valve in a grass-covered hole, causing him to fall to the ground and sustain injuries which ultimately led to his death. In the ensuing wrongful death litigation, MacIsaac v. Nassau County, the question became whether MacIsaac had assumed the risk of a participant in a recreational sporting contest. A party is deemed to have assumed the risk associated with an activity when engaging in sport or recreation, but only with respect to the commonly appreciated risks inherent in and arising out of the nature of the sport generally. This assumption of risk would apply to risks involved in the playing surface and open and obvious conditions. However, if there were a concealed condition on the golf course or the inherent risks of golf were somehow unreasonably increased, the doctrine would not apply. The County of Nassau sought summary judgment on the basis of this legal theory. In granting this motion, the judge rejected evidence submitted by plaintiff to oppose the motion, including plaintiff’s photographs, due to a purported violation of CPLR 3101, i.e. failure to disclose an authenticating witness. Likewise, the plaintiff’s expert was disqualified as he relied upon the photographs. The Second Department considered the admissibility of the supporting evidence in opposition, as well as the underlying theory of the case in overturning the dismissal of plaintiff’s case. The court found that authenticating information for the photographs was not necessary and that the expert opinion should have been considered. After considering all of the evidence, the higher court held that plaintiff raised a triable issue of fact as to whether the subject condition was concealed or unreasonably increased the risks inherent in the golf course. Thanks to Vincent Terrasi for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News NY: A&B Sub-Limit Applies To Primary But Not Excess Policy November 30, 2011 < Back Share to: It is a harsh reality that courts will give policyholders every benefit of the doubt in interpreting the terms, conditions and limits of policies of insurance. Insurers must be careful to place their insureds on notice of significant exclusions and limitations through the use of clear, concise and plain language in their policy forms. Even trickier, most states require that insurers timely advise their insureds and claimants if they conclude that the policy does not cover a particular claim or loss. What obligation does an insurer have if it does not deny coverage outright but seeks to enforce a significant sub-limit of liability? Is the insurer bound by the same rules that control when the insurer seeks to disclaim liability? Recently, in Santa v. Capitol Specialty Insurance, LTD., et al., plaintiffs filed suit against a Manhattan night club arising out of an alleged assault on plaintiffs. The third party administrator for the primary insurer became aware of the claim after it received the summons and complaint, which contained a specific count based on assault. Nine months later during discovery, the attorneys for the policyholder disclosed, for the first time, that the primary policy was subject to an assault and battery sub-limit of $50,000. The insurance disclosure also identified an excess policy with limits of $4,000,000 but made no reference to the sub-limit contained in the primary policy. The claimants protested that the primary insurer must provide its full policy limits because it failed to provide timely notice of the assault and battery sub-limit. Further, they argued that the excess insurer must make its full policy limits available because its policy did not contain any explicit exclusion or sub-limit for claims based on assault and battery. Of significance, the court held that the primary insurer was not subject to the normal rules requiring timely notice of disclaimer because it was not disclaiming or otherwise denying coverage. Rather, it was providing “the full measure of coverage available for the incident,” just with a reduced sub-limit of liability. On the other hand, the excess insurer did not fare as well. The court cited a number of problems with the excess insurer’s stance including its failure to exclude or specifically minimize its limits of liability for claims based on assault and battery. Further, the court was troubled by the excess insurer’s failure to put the claimant on notice of the sublimit when the insurance disclosure was furnished to the claimant’s attorney during discovery. The lesson of Santa is clear: while Santa may overlook minor errors in conduct and still arrive bearing gifts, insurers can expect no such generosity from the courts. Be clear, accurate and specific in the language contained in your policies and the disclosures made to your insureds and claimants. http://pdf.wcmlaw.com/pdf/santa.pdf If you have any questions or comments about this post, please contact Paul at pclark@wcmlaw.com Previous Next Contact

News Failing To Prepare Is Preparing To Fail In NJ Courts October 8, 2012 < Back Share to: In the recent decision of Werthmann v. New Jersey Manufacturers Insurance Company, the Appellate Court upheld the dismissal of plaintiff’s complaint with prejudice based upon plaintiff’s failure to secure a medical expert for trial. Werthmann was injured in a motor vehicle accident and filed an uninsured motorist claim against her insurer, New Jersey Manufacturers Insurance Company. The matter was listed for trial on six different occasions before finally being rescheduled for October 17, 2011. On that date, the judge ordered the parties to return the following day to begin trial. On October 18, 2011, the plaintiff’s counsel informed the judge for the first time that he was not prepared to proceed due to his expert witness' unavailability. Particularly, counsel advised that the physiatrist's testimony regarding the results of an independent EMG was necessary to meet plaintiff’s burden of proof regarding objective evidence of a permanent injury. The judge in turn dismissed the plaintiff’s complaint with prejudice on the grounds that the plaintiff was not prepared to proceed at trial. The Appellate Court upheld the trial judge’s decision, noting that any lesser sanction in this case would circumvent the purposes of the "Best Practices" rule amendments in New Jersey. Thanks to Heather Aquino for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a1444-11.pdf Previous Next Contact