News NJ Supreme Court Holds that NJ Transit is held to Heightened Duty of Care to its Passengers February 18, 2021 < Back Share to: On February 17, 2021, the New Jersey Supreme Court in Maison v. New Jersey Transit Corporation held that NJ Transit, which is a public common carrier of passengers, is held to the same heightened duty of care regulating private carriers. By way of background, the case involved a young woman whose forehead was severely injured after teenage passengers threw a bottle at her face. The teenagers were never arrested and the NJ Transit bus operator never told the teenagers to stop harassing plaintiff. Plaintiff ultimately sued NJ Transit which resulted in a trial verdict of $1,800,000. The trial court determined that the common-carrier standard applied to NJ Transit, and that Tort Claims Act immunities did not shield NJ Transit from liability. The trial court also held that the jury could not allocate fault to the unidentified bottle thrower. The Appellate Division affirmed, except that it found the trial court erred when it instructed the jury to not allocate fault on the intentional tortfeasor. The case was remanded to the jury to determine what percentage of fault should be allocated to the bottle thrower. The New Jersey Supreme Court agreed with the lower courts and held that NJ Transit and its bus drivers are held to the same duty of care governing private common carriers. That duty required NJ Transit “to exercise the utmost caution to protect their passengers as would a very careful and prudent person under similar circumstances.” Tort Claims Act immunities that may be available do not impact this duty of care. Finally, the Tort Claims Act required the jury to consider allocating fault not only between NJ Transit and the bus driver, but also the bottle thrower. Thanks to Mike Noblett for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Federal Employer’s Liability Act Does Not Apply to Seamen’s Arbitration Agreements April 23, 2010 < Back Share to: In Harrington v. Atlantic Sounding Co., plaintiff Harrington suffered injuries to his back in April 2005 while working as a seaman aboard the Candace, which required lumbar surgery. Defendant employers sent Harrington a letter in July 2005 pursuant to 9 U.S.C. § 2, the Federal Arbitration Act ("FAA"), stating that plaintiff and defendant would agree to arbitrate plaintiff's claim with the American Arbitration Association. Moreover, the letter stated that the decision of the arbitration panel would be binding, and that plaintiff would be precluded from bringing suit in the future. Defendants also agreed to send Harrington an advance of funds under a reservation of rights. Harrington signed the agreement and remitted it to defendants. Just over a year later, in June 2006, plaintiff commended the present action under the Jones Act, 46 U.S.C. § 688, which incorporates the Federal Employer's Liability Act ("FELA") in a maritime context by giving injured workers the right to seek compensation for injuries via trial by jury. Obviously, plaintiff's suit under the Jones Act was in conflict with the signed arbitration agreement. The United States District Court for the District of New Jersey found the arbitration agreement to be both procedurally and substantively unconscionable, defendants appealed, and the U.S. Court of Appeals for the Second Circuit reversed. The Court found that that Section 6 of FELA did not apply to arbitration agreements at all, and thus the arbitration agreement was not unenforceable as a matter of law under § 2 of the FAA. Moreover, the Second Circuit found no substantive unconscionability, noting that that a completely one-sided agreement (which this concededly was) is not necessarily an unconscionable one. Therefore, because the arbitration agreement was enforceable, plaintiff's suit for personal injuries was precluded. This decision reflects "a healthy regard for federal policy favoring arbitration." Moreover, the court notes that the when FELA was drafted, the drafters in no way contemplated an arbitral forum at all, and therefore, FELA can not mandate a right to a trial by jury when an arbitration agreement, executed by both plaintiff and defendant, is already in place. It will be interesting to see whether future scenarios where FELA and FAA are in conflict have a similar result. Thanks to Brian Gibbons for his contribution to this post. http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9495223 Previous Next Contact

News NJ: Insurance "Step Down" Provision Upheld November 18, 2009 < Back Share to: A clause in an insurance policy that reduced the available policy limit for a truck driver who was not named within the policy’s “Schedule of Reported Drivers” from $500,000 to the minimal statutory amount of $15,000 was upheld where the policy language was clear and unambiguous. Although the Court commented upon the substantial injuries sustained by the plaintiff who jumped from a moving train when it collided with a Freightliner truck, it concluded that sympathy for the plaintiff could not override the clear and unambiguous policy term. Finding the policy term clear, the court held the policy holder to the term as written despite an argument that he may not have understood it due to a language difficulties. Additionally, although the plaintiff argued that such a “step-down” clause should be void as against public policy, the court disagreed. Specifically, the court affirmed the insurer’s “legitimate underwriting concern” to limit its exposure when a large commercial truck is operated by a driver who it had not investigated, rated or approved. Moreover, the Court noted that New Jersey’s Supreme Court has upheld similar provisions. See Ford v. National Independent Truckers Insurance Co., 2009 WL 3762423 (App.Div. 2009)(unreported decision) www.judiciary.state.nj.us/opinions/a0167-08.pdf If you would like more information regarding this post, please email denise at dricci@wcmlaw.com Previous Next Contact

News President Proposes Federal Insurance Office June 19, 2009 < Back Share to: It has been reported that President Obama will propose that a new office be created in the Treasury Department to monitor all aspects of the insurance industry and determine risks that could lead to future financial crises. The new office, The Office of National Insurance, would attempt to coordinate policy, but would not be a direct regulator. http://www.insurancejournal.com/news/national/2009/06/17/101458.htm Previous Next Contact

News Expert Opinion Permitted on Issue of Who Performed Product Alterations (NJ) November 22, 2012 < Back Share to: The N.J. Appellate Division recently considered the factual foundation required to admit opinion testimony in a case involving the alteration of heavy machinery. In Carneiro v. John Deere Dubuqueworks, plaintiff was struck by a backhoe while replacing water pipes at a construction site. Plaintiff was employed by defendant, Central Pipes, that was hired by defendant, P.M. Construction (“P.M.”), the general contractor and owner of the backhoe. P.M. had purchased the backhoe from Jesco, Inc. five years prior. At the time of purchase, P.M asked Jesco to install an "alternate lever arrangement" for the backhoe arm controls. Of significance, the manufacturer of the equipment was granted summary judgment earlier during discovery and the plaintiff settled his claims against P.M. and Jesco so the sole issue being tried was the allocation of liability between P.M. and Jesco. The operator of the machine testified that when he rotated his seat to face the front of the bucket-loader, it came in contact with the lever, which caused the backhoe’s arm to strike the plaintiff. Jesco’s expert found that the levers were deliberately modified as they were positioned three inches closer to the operator then when Jesco had made its changes to the original design of the control console. In addition, the operator’s seat showed signs that it had been scraped by the lever multiple times. A Jesco employee who inspected the backhoe after the incident also testified that the levers were out of alignment. P.M. argued that there was no evidence to support the opinion of Jesco’s expert that P.M. modified the lever system, as the scrape marks could have been etched subsequent to the subject accident. Jesco responded that if the jury found that the original modifications were proper, there would be strong circumstantial evidence that P.M. performed a subsequent alteration. The jury found P.M. 95% liable for plaintiff’s injuries. The trial court noted that the jury received a lot of information regarding the levers. It denied P.M.’s motion for judgment notwithstanding the verdict, finding that it was not unreasonable for the jury to find that the levers were modified in some way by P.M. P.M. appealed asserting that the expert opinion was unsupported by the factual record. The Appellate Division upheld the jury verdict, finding an adequate factual foundation as Jesco’s expert performed a personal inspection of the backhoe, reviewed the relevant discovery and rendered his opinion within a reasonable degree of engineering probability. It also found no error in the jury instruction that the backhoe operator’s negligence could be considered in context of Jesco’s claim that P.M. failed to provide proper site supervision. Thanks to Andrew Marra for his contribution of this post. If you have any questions or comments, please email Paul at pclark@wcmlaw.com . Previous Next Contact

News Yet Another Twist in Pennsylvania Products Law August 22, 2012 < Back Share to: In the never ending saga of Pennsylvania products liability law, two district courts recently found themselves at odds once again. As we previously posted, in July Judge John E. Jones III of the Middle District of Pennsylvania ruled that since the Pennsylvania Supreme Court declined to adopt the Restatement (Third) of Torts in March in Beard v. Johnson & Johnson, the Middle District must follow precedent and apply the Restatement (Second). However, in the latest twist another twist, Judge Mark Hornak of the Western District of Pennsylvania chose to follow the dictates of the Third Circuit, set forth in Covell v. Bell Sports, which urges the Pennsylvania district courts to apply Sections One and Two of the Restatement (Third) of Torts. In Lynn v. Yamaha, Judge Hornak reached the exact opposite conclusion of Judge Jones, reasoning that decisions and predictions made by the Third Circuit are binding on Pennsylvania courts unless the Pennsylvania Supreme Court rules expressly to the contrary. Given that the Pennsylvania Supreme Court did not specifically overthrow the reasoning in Covell to rely on Restatement (Third), Judge Hornak concluded that the district court was required to apply the principles in the Restatement (Third). It unfortunately appears that the state of Pennsylvania products liability law will remain in flux until the state Supreme Court decides to rule on the issue. Thanks to Remy Cahn for her contribution to this post. If you would like further information, please write to mbono@wcmlaw.com     Previous Next Contact

News Out of Possession Landlord Not Liable for Injuries Caused by Stray Bullet < Back Share to: In New York, an out of possession landowner cannot be liable for injuries caused by a dangerous condition on a leased premises absent a statute imposing liability, a contractual obligation placing the duty to repair on the landowner, or a course of conduct by the owner giving rise to a duty. The Appellate Division, Second Department, recently applied this rule in the case of N.G. v. DRF Mgt. Corp. There, plaintiffs sought damages for injuries sustained by an infant plaintiff who was struck by a stray bullet while inside the premises owned by DRF. At the time, the premises were leased by Louis Escobar and operated as a pizzeria. The trial court granted DRF Management’s motion for summary judgment and plaintiff appealed. The Second Department affirmed, holding that DFR owed no duty to the infant plaintiff. In so holding, the Court found that the complaint alleged liability based on common law negligence, rather than the violation of a statute. It also noted that when an out of possession landowner retains some control and some contractual duty to make repairs on the premises, the question of liability will turn on whether the injury producing condition fell within the landowner’s contractual obligations. Because DRF established it was an out of possession landowner that did not retain control over the premises, and the lease only required DRF to replace damaged plate glass at the tenant’s expense, DRF was not liable to the plaintiff. Given that holding, the Court did not address the issue of whether DRF had notice of the alleged dangerous condition. This decision echoes that the liability of an out of possession landlord will depend on whether they have some control over, or contractual duty to maintain, the property at issue. Landlords with neither will have grounds to move for summary judgment if they can establish these facts as a matter of law. N.G. v DRF Mgt. Corp. .pdf Download PDF • 101KB Previous Next Contact

News Can A Verdict Render An Appeal Moot? (NY) November 2, 2022 < Back Share to: In a noteworthy decision, the Court of Appeals recently held that where a triable issue of fact is litigated and a final verdict reached, that issue of fact is rendered moot on pending appeal. Meaning, if 1) a party moves for summary judgment on liability, 2) that motion is denied, 3) the movant appeals that decision, and 4) a trial verdict decides liability before the appeal is heard, that verdict becomes the law of the case, and the appeal is rendered moot. This is a big deal. The recent decision of Bonczar v. American MultiCinema Inc., 38 N.Y.3d 1023, 1025, 188 N.E.3d 1000, reargument denied, 38 N.Y.3d 1170, 195 N.E.3d 526 (2022), presented a plaintiff who sought damages against the defendant for violating Labor Law §240(1) and moved for partial summary judgment on that claim. While the lower court granted plaintiff’s summary judgment motion, the Appellate Division reversed finding issues of fact as to whether a statutory violation occurred. Subsequently, plaintiff’s Labor Law §240(1) was brought before a jury. At the conclusion, the jury held in favor of the defendant finding that plaintiff’s acts were in fact the sole proximate cause of his injury. The Appellate Division affirmed the jury’s verdict on appeal. Thereafter, plaintiff brought both the order denying his partial summary judgment motion and the order affirming the jury’s verdict before the Court of Appeals. The Court of Appeals held that pursuant to CPLR 5501(a) the denial of plaintiff’s summary judgment motion may be reviewed on appeal only if the nonfinal order necessarily affects the final judgment. In a matter of first impression, the court explained that to determine whether a nonfinal order necessarily affects the final judgment, the question is: “whether the nonfinal order necessarily removes a legal issue from the case so that there is no further opportunity during the litigation to raise the question decided by the prior non-final order.” The court explained that here, when the Appellate Division reversed the plaintiff’s motion for summary judgment, finding issues of fact, that nonfinal order did not remove any issues from the case; rather, it was left undecided. Instead, the parties had the opportunity to litigate those issues at trial, and in fact did so. Therefore, the Court of Appeals held that the Appellate Division’s order denying plaintiff summary judgment did not necessarily affect the final judgment and thus, the Court of Appeals could not review it now on appeal. The decision is a big deal, because if a trial takes places while a summary judgment appeal is still pending -- which can happen -- the verdict trumps the appeal, and therefore. Bonczar significantly reduces the leverage held by the appealing party in the scenario described above. To that end, we recently attended a CAMP Conference at the 2nd Department, and the presiding judge was pressing the importance of Bonczar, to further incentivize settlement to all parties. Thanks to Gabi Scarmato for her contribution to this post. For any questions about Bonczar, or how we expect it will be applied in the future, please contact Brian Gibbons.   Previous Next Contact

News WCM Obtains Summary Judgment in New York County, NY Premises Liability Case December 7, 2012 < Back Share to: New York, NY Counsel Cheryl Fuchs was awarded summary judgment in a New York County, NY premises liability case. In the case of Maldonado v. 106th Street Houses, Inc., the plaintiff alleged that he tripped and fell over a hole that was located underneath a sidewalk bridge that our client, Everest Scaffolding, Inc., had erected. We took an aggressive approach and moved for summary judgment pre-depositions. In support of our motion, we submitted an affidavit from our investigator and our client indicating that the hole was at least three feet away from the nearest sidewalk bridge pole. The affidavit further explained that the erection of the sidewalk bridge did not alter the sidewalk, and could not have created the alleged hole that caused plaintiff’s accident. In opposition, both plaintiff and co-defendant argued that the motion was pre-mature, and that a deposition of our client might reveal that the erection of the sidewalk created the hole. Previous Next Contact

News Call Your Next Witness - Wendy Sheinberg & Jennifer Hillman March 25, 2022 < Back Share to: Have you ever watched a movie with a legal issue and thought to yourself, "Wait, could this plot really happen this way?" In Rain Man, for example, Tom Cruise kidnaps his autistic older brother, played by Dustin Hoffman, to extort his brother's inheritance. Instead of being presented as the somewhat flawed protagonist in Rain Main, Tom's character probably should have served time under a federal kidnapping statute. Rain Man is just one example. Wendy Sheinberg and Jennifer Hillman. partners at Rivkin Radler LLP on Long Island, recently decided to look at some of these movies that mishandle legal issues pertaining to estate handling, litigation and the like. And in their publication, "Wendy and Jen Wreck the Movies," they comment some of the poetic license filmmakers often take, and offer their two cents on what should have happened, if the filmmakers went by the book. On this episode of Call Your Next Witness, Wendy and Jen join Georgia and Brian to talk about some of the movies they are delving into, including Citizen Kane, Rain Main, Howard's End, and a few others, and to point out how Hollywood consistently gets it wrong. (At least, from a legal-realism perspective...although realism probably isn't Hollywood's goal most of the time.) Meaning, in real life, Lt. Caffey probably doesn't get Col. Jessup to just admit guilt on cross-examination. But it sure does make for compelling drama! You can find Wendy and Jen at rivkinradler.com, or follow them on Twitter at @wjwreckthemovi1. If you would like more information about Call Your Next Witness, or are interested in being a guest, please contact Brian Gibbons or Georgia Coats. Previous Next Contact

News There's Still No FSMA Will. January 19, 2012 < Back Share to: The more things change, the more they stay the same (with apologies to Heraclitus). We have spilled much ink (or at least web space) writing on the FSMA and the lack of budgetary clout to support its ambitions. According to recent reports, an additional $1.5 billion is required to fully fund the FSMA's lofty ambitions. We think it is doubtful, in the current political and economic climate, that the funding will arise (unless, of course, there's a major food borne illness catastrophe). In the meantime, the FSMA will largely remain a toothless tiger. For more information about this post or WCM's product recall practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News RIMS Predicts Continued Soft Commercial Insurance Market October 9, 2007 < Back Share to: The Risk and Insurance Management Society, Inc. predicts a continued softening of commercial insurance rates with rare exception. Encouraging for commercial insureds, the trend is expected to continue in all segments of the market with the exception of property insurance. The RIMS survey is consistent with the experience relayed by many WCM clients: increasing capacity and competition have resulted in a downward pressure on rates. http://www.businessinsurance.com/cgi-bin/article.pl?articleId=23133 Previous Next Contact