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News The Path Less Traveled: Walk on Grassy Medium Leads to Summary Judgment March 4, 2022 < Back Share to: Last month, New Jersey’s Appellate Division affirmed a trial court’s summary judgment decision where a Poconos Casino was granted summary judgment in a premises liability action. In Failla v. Mount Airy Casino Resort, LP, a plaintiff and her son travelled from Lyndhurst, New Jersey to Mount Airy Casino Resort in Mount Pocono Pennsylvania. Plaintiff was walking in the casino’s handicapped parking lot when she fell over a Belgian block curbing and uneven dirt path on a grassy parking lot medium. Plaintiff claimed that other patrons were walking in front of and behind her on the path. Plaintiff lost consciousness and sustained a concussion – and despite her son urging her to go home, she decided to stay at the casino. She stayed for five hours when she again lost consciousness, after which she went to the hospital and was found to have fractured her right shoulder. Plaintiff alleged that defendants breached a duty their duty to maintain a safe premises for plaintiff by failing to inspect the property for dangerous conditions and failing to remedy the dangerous condition that caused plaintiff’s fall. Defendants moved for summary judgment arguing that plaintiff fell in an area not intended for pedestrians to walk on and that the plaintiff could not identify the cause of her fall. The trial judge granted summary judgment. Plaintiff appealed, arguing that summary judgment was inappropriate as discovery had not been completed, competing expert opinions created a question of material fact, and the judge erred in applying the Choice of Ways Doctrine. Plaintiff’s expert alleged a dangerous condition existed on the grassy medium due to worn areas in the grass behind the curb which present tripping hazards and the presence of wetness on the ground. Based on these conditions and defendant’s failure to discourage patrons from crossing the parking lot islands, plaintiff’s expert concluded that defendants were negligent. Defendant’s expert noted that the parking lot was code compliant for pedestrian conditions and plaintiff’s fall was from her failure to exercise caution. Plaintiff’s expert report was disregarded by the Appellate Division since although it identified dangerous conditions based on moisture on the ground and low spots in the grass, it failed to identify which of these hazards caused plaintiff’s fall. Moreover, plaintiff could not testify whether she tripped and fell or slipped and fell. She also did not remember how she fell. Moreover, even though discovery was not complete, plaintiff’s requested discovery that was outstanding would not supply the missing elements of negligence, so this was not a reason to deny summary judgment. Finally, the court analyzed Pennsylvania’s Choice of Ways Doctrine propounded by the Pennsylvania Superior Court in Gilligan v. Villanova University, 584 A.2d 1005 (Pa. Super. Ct. 1991). Under this doctrine, where a plaintiff voluntarily chooses to walk upon an area not intended to be traversed by pedestrians and subsequently falls, that plaintiff fails to state a viable cause of action. The New Jersey Appellate Division found that case to be analogous here as there were adequate crosswalks which Plaintiff could have used, yet she was injured when she chose to walk on a grassy medium not intended for pedestrians. Therefore, summary judgment was affirmed. Thanks to Brendan Gilmartin for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News 2nd Dept. Sides with the Medical Records (NY) January 3, 2020 < Back Share to: In Wettstein v. Tucker, the Appellate Division, Second Department addressed whether the two plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of a motor vehicle accident. The defendant moved for summary judgment to dismiss the complaint on the ground that neither plaintiff sustained a serious injury. Plaintiff Timothy alleged injuries to his spine and left shoulder, and plaintiff Michelle alleged injuries to the cervical region of her spine as a result of the subject motor vehicle accident. The Supreme Court, Nassau County granted the defendant’s motion for summary judgment, which was affirmed by the Appellate Division. The Appellate Division stated that the defendant submitted medical evidence that the plaintiffs’ injuries did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (including under the 90/180 – day category) and that each plaintiff suffered from pre-existing conditions. This decision serves as a reminder that when making a summary judgment motion on the grounds that the plaintiff did not sustain a serious injury that it is imperative to submit medical records with your motion to prevent the plaintiff from raising a triable issue of fact. Additionally, the medical records should try to focus on the severity of the alleged injuries, and if the plaintiff suffers from any pre-existing conditions. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Crocs, children and escalators -- a marriage made in liability heaven. October 1, 2007 < Back Share to: Apparently, children who wear soft-soled sandals (like Crocs) on escalators run the risk of significant toe injuries. http://www.insurancejournal.com/news/national/2007/09/24/83639.htm Previous Next Contact

News "Brawl" At NY Hockey Game Not Assumed Risk October 5, 2009 < Back Share to: Plaintiff was injured at Nassau Coliseum while attending a charity hockey game. During the game, T-Shirts were tossed into the stands and the plaintiff was knocked over in all of the commotion caused by the other spectators trying to catch the tossed T-Shirts. Defendants moved for summary judgment, using an assumption of risk defense. The Appellate Division, Second Department, though not all in agreement on the reason, denied defendant’s motion for summary judgment. The majority concluded that defendants did not prove as a matter of law that they were entitled to summary judgment. In order to prove that plaintiff assumed the risk, they had to prove that “injury-causing events” were a known and foreseeable consequence of attending a hockey game. The majority concluded that defendants had not proven the events were a known and foreseeable consequence. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06791.htm Previous Next Contact

News Pennsylvania Law Stands Firm: Unlicensed Driver Exclusion Rejected For Medical Expense Coverage December 15, 2023 < Back Share to: Insurance policies often contain exclusion clauses designed to mitigate risks, yet the treatment of unlicensed drivers within these agreements remains a contentious issue. In particular, the denial of coverage for accidents involving unlicensed drivers has sparked legal debates across various states. The Superior Court of Pennsylvania held in Nationwide v. Castaneda that for the purposes of first-party medical expense benefits, unlicensed driver exclusions may not apply under Pennsylvania law. Nationwide Prop. & Cas. Ins. Co. v. Castaneda, 2023 PA Super 253, 2023 WL 8391516 (Dec. 5, 2023). In the underlying case, the daughter of the insured, with her mother’s permission but without a valid license, was rear-ended while operating her mother’s car. The daughter subsequently sustained severe injuries. The mother, under her auto policy, submitted a claim for first party medical expense benefits, which Nationwide denied under the policy’s “unlicensed driver exclusion”. The trial court agreed no coverage was owed. On appeal, the insured argued that even if the exclusion as written applied, the Motor Vehicle Financial Responsibility Law (“MVFRL”) made the exclusion invalid for the purposes of first party medical expense benefits . The Superior Court agreed. Citing to Section 1711 of the MVFRL, the court noted that it “specifically mandates that policyholders purchase, and insurers provide coverage for, first party medical expenses for injuries arising from the use of a motor vehicle”. Castaneda at 4. In other words, medical coverage was explicitly listed as the single benefit under Section 1711 that was to be considered a “Required Benefit”. The Court then dug into the intent of the General Assembly and remarked that by making medical expense coverage mandatory under the law, it was clearly intended to be treated differently from other first party benefit coverage. As the final nail in the coffin, the court cited to Section 1718 of the MVRFL, which sets out an enumerated list of limited circumstances when the insurer may exclude someone from the benefits of medical expense coverage. As an “unlicensed driver” exclusion was not part of the enumerated list written by the legislature, it could not be used as a means of denying “otherwise mandated coverage for first party medical benefits”. Id. at 6. The Court noted that if insurers could add to the statutory list of exclusions to deny coverage, the mandate would unreasonably be diluted to the point of losing its effect. In conclusion, because the insured’s medical expense claim did not fall under one of the limited exclusions set forth in Section 1718, Nationwide did not have a valid exclusion to rely on to refuse coverage in this limited context. The Superior Court was clear that their conclusion was to be read strictly within the confines of claims made for first party medical expense benefits. Insurers may still exclude benefits if injury arises out of intentional action by the insured, or other enumerated reasons set forth in 1718. Nationwide Property and Casualty Insurance Company v. Castaneda .pdf Download PDF • 195KB Previous Next Contact

News Windstorm Knocks Out Sublimit In Coverage Dispute (NJ) December 6, 2019 < Back Share to: The New Jersey Appellate Division recently held that the New Jersey Transit Corporation (“NJT”) was entitled to the full $400 million in policy limits from its insurers for losses sustained in the wake of Superstorm Sandy, notwithstanding the presence of a $100 million flood sublimit. The case, NJ Transit v. Lloyds reaffirms numerous central tenets of insurance law which, in this case, worked decidedly against the insurers. In 2012, NJT obtained a multi-layered property insurance program from 11 different insurers covering the period from July 1, 2012 to July 1, 2013. The policies provided “all risk” coverage through four layers of coverage totaling $400 million of limits. However, the policies contained a $100 million per-occurrence sublimit for “losses caused by flood”. The definition of “flood” included “surge.” In addition, by endorsement, the policies separately defined a “named windstorm” as wind and the resulting storm surge caused by a storm named by a national weather service. Thus, both definitions seemingly included a “surge.” When Superstorm Sandy struck in 2012, NJT quickly notified its insurers of its losses, and sought coverage under the policies. The insurers argued that the flood sublimit applied and refused to reimburse NJT for any amounts greater than $100 million. As a result, NJT filed this action seeking a declaration that the insurers owed the full $400 limits. The trial court granted NJT’s motion for summary judgment, and the ensuring appeal followed. There was no dispute that the losses were caused by Superstorm Sandy and the resulting storm surge. At specific issue on appeal was the effect of the “named windstorm” endorsement and the interplay between that language and the sublimit for “losses caused by flood.” The insurers argued that, because NJT’s losses were caused by “flood,” which included a “surge”, the sublimit applied. In affirming the trial court, the appellate court relied on the concept that, when two provisions of an insurance policy address the same subject, the more specific provision controls over the more general. Here, while the definition of “flood” included a “surge,” the definition of named windstorm specifically extended to wind driven water or storm surge associated with a "named windstorm,” which included Sandy. Thus, if the parties intended the term “flood” to include a storm surge associated with a named windstorm, the endorsement would have been unnecessary. The court further rejected the insurers’ arguments that the purpose of the endorsement, when read in conjunction with other provisions, was to highlight that losses caused by a named windstorm within a 72 hour period constitute one “occurrence” under the policy. Notably, NJT’s broker apparently represented that the flood sublimit would remain applicable notwithstanding the named windstorm definition. Nonetheless, the court found that the “named windstorm” provision was its own named peril, separate and apart from “windstorms” referenced elsewhere. The decision highlights the importance of the plain language of the policy. Although the insurers contended that the broker misrepresented their intentions when adding the “named windstorm” definition, the court sternly held that the insruers “had an obligation to read those terms before agreeing to participate in the program and provide coverage.” Thanks to Doug Giombarrese for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Iron Worker... Ladder... Elevation... No Labor Law § 240 Claim (NY) January 26, 2017 < Back Share to: Labor Law § 240 requires property owners, construction companies, and contractors to protect their workers from elevation-related risks, and holds them strictly liable for plaintiff’s injuries if they fail to do so. Counsel in Labor Law cases therefore spend large amounts of time and effort litigating whether plaintiff’s injuries implicate Labor Law § 240, as the answer will often significantly affect a case’s value. The Second Department’s recent decision in Guallpa v Canarsie Plaza, LLC informs us, however, that not all plaintiffs injured off the ground may assert Labor Law § 240 claims. In Guallpa, plaintiff, an iron worker, was standing on a ladder while working to secure an overhead steel beam to the building structure. While plaintiff was working, another employee, operating a forklift at ground level, struck a portion of the beam plaintiff was working on. This caused the beam to shift and, unfortunately, pinned plaintiff’s arm between the beam and a nearby concrete wall, inflicting injuries. Both plaintiff and defendants cross-moved for summary judgment as to plaintiff’s Labor Law § 240 claim, and the trial court denied both motions. On appeal, the Second Department reversed the trial court decision and granted summary judgment to defendants. The Second Department, focusing on the purpose of Labor Law § 240, noting that while the law is meant to protect workers from elevation-related risks, merely working above ground level does not automatically entitle workers to its protections. Specifically, the Second Department identified Labor Law § 240 as guarding workers against two types of risks: elevation-related (a worker falling from a height) and gravity-related (objects falling from a height onto the worker). Therefore, the Second Department concluded, because plaintiff was not injured by either a falling object or by falling from a height, he could not properly assert a claim under Labor Law § 240. Unfortunately for defendants, the Second Department then reversed the trial court’s ruling that they were entitled to summary judgment on plaintiff’s Labor Law § 241(6) claim, holding that they had failed to offer facts sufficient to refute plaintiff’s claim that the steel beam that injured him was improperly secured pursuant to a potentially applicable Industrial Code provision. Guallpa serves as a reminder to all Labor Law defense practitioners to carefully scrutinize a plaintiff’s bill of particulars and deposition transcript to establish the precise mechanism of plaintiff’s injury. In a field where ladders and heights often indicate increased settlements and damages awards, be sure to establish if plaintiff is in fact entitled to assert a Labor Law § 240 claim. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Game, Set, Match: Plaintiff Tripping On Tennis Court Has No Claim Under Primary Assumption of Risk Doctrine (NY) August 26, 2021 < Back Share to: In Schwartz v. Ramapo, 2021 NY Slip Op 04773 (2d Dept. 2021), a plaintiff was playing tennis when she suffered injuries after tripping on a raised sprinkler head in between two tennis courts owned and operated by the Town of Ramapo. The Rockland County Supreme Court Judge dismissed the Ramapo defendants’ under the doctrine of primary assumption of risk. “Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation. Assumption of risk is not an absolute defense but a measure of the defendant's duty of care (Asprou v Hellenic Orthodox Community of Astoria, 185 A.D.3d [2d Dept. 2020]); ‘the defendant's duty is to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, [the participant] has consented to them and defendant has performed its duty’ (Asprou, supra). “Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation” (Asprou, supra). “Among the risks inherent in participating in a sport are the risks involved in the construction of the field, and any open and obvious conditions of the place where the sport is played” (see Philius v City of New York, 161 A.D.3d 787 [2d Dept. 2018] ), including less than optimal conditions (Asprou, supra). The Second Dept. held the defendants’ satisfied their prima facie burden for summary judgment by showing the raised sprinkler head was open and obvious and plaintiff testified she knew sprinkler heads were present in between tennis courts. Plaintiff’s argument that she was not specifically aware of the sprinkler system causing her fall was unavailing. The court determined for the application of assumption of risk, the plaintiff need only know the potential exists for the mechanism of her fall i.e. she knew there were certain sprinkler heads present on the tennis court and she knew the tennis courts were cleaned with water from the sprinklers. Plaintiff also failed to offer any conclusive expert evidence that the sprinkler heads should have been flush with the court so as to avoid causing a tripping hazard. The Schwartz case sets an excellent example of the doctrine of primary assumption of risk. It highlights that if a certain condition exists in a recreational area, although it may be hazardous, it may also fall under the assumption doctrine so long as the condition is open and obvious and the public participants would have been made aware of the condition as a part of the recreational activity. Prudent property owners will warn public pedestrians about the potentially hazardous conditions on their recreational areas to avoid liability for subsequent injuries. Thanks to Raymond Gonzalez for his assistance with this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News Modern Family Living Defies Labor Law 240 and 241 Application (NY) June 8, 2016 < Back Share to: New York's Labor Law 240 and 241place responsibility on construction companies, contractors and property owners for the safety of workers working at a height. There is an exemption for homeowners of one or two family homes. In Del Carnen Diaz v Bocheciamp, the First Department looked at the discreet issue of what constitutes a one or two family home and applied a "site and purpose test" in their analysis. The plaintiff's decedent-fell to his death while working on the defendant homeowner's roof. In a post-trial motion, the defendant-homeowner sought to dismiss the plaintiff’s claims under the exemption, but the lower court denied the motion. At issue was the plaintiff's contention that the home was used to house three families: the homeowners, their adult child with two children, and a family friend. The First Department held that, when applying the homeowner exemption, a court must apply the “site and purpose” test, which looks at the homeowner’s intention at the time of the accident and the purpose of the work. In this matter, the plaintiff tried to argue that the home was a three-family dwelling because the basement was rented out to a tenant and the homeowners' daughter and grandchildren were living on the top floor. However, the court found that there was uncontradicted evidence that the homeowners did not collect rent from their daughter/grandchildren and that the top floor was not a true apartment, as it only contained two bedrooms. Accordingly, the Appellate Division found that the two-family homeowner exemption applied. Thanks to Georgia Coats for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News City Challenges Rejection of 9/11 Settlement April 15, 2010 < Back Share to: The 9/11 tragedy has generated a cottage industry of litigation about the definition of the term "occurrence" in a property policy, the obligations of a long term tenant to rebuild property destroyed by terrorists and the liability of owners of property and their contractors to workers who claim to have been injured in the aftermath of the 9/11 attack. After years of litigation, the City of New York and its contractors announced a global settlement with thousands of plaintiffs who seek compensation for respiratory injuries allegedly caused by the effects of 9/11. The settlement fund could reach as much as $657,000,000 if accepted by over 98% of the claimants. Judge Alvin Hellerstein rejected the proposed settlement as inadequate and prohibited the parties from implementing several key provisions in the agreement. The City of New York disputes the court's authority to approve the settlement or reject any provision in the agreement. The City has filed a notice of appeal with the Second Circuit in an effort to salvage the settlement as negotiated between the parties. If you have any questions about this post, please email Paul Clark at pclark@wcmlaw.com City of New York Appeal Pdf Previous Next Contact

News Plaintiff’s Lack Of Diligence Merits Dismissal In PA January 20, 2023 < Back Share to: The Superior Court of Pennsylvania recently issued an opinion in which the court laid out the burden that a plaintiff must satisfy when she files a writ of summons to commence a lawsuit. In Senyk v. Ukrainian Catholic Archeparchy of Philadelphia, 2023 WL 127520 (Pa. Super. Jan. 9, 2023), the plaintiff was injured when she slipped and fell while visiting a cemetery in Philadelphia. She thereafter retained counsel and, four days before the expiration of the two-year statute of limitations, she filed a praecipe for a writ of summons to commence a lawsuit against the church organization that operates the cemetery. The plaintiff, however, made no formal attempt to effectuate service on the defendant church organization. Instead, her counsel communicated directly with a claims specialist employed by the organization’s third-party insurance administrator both before and after the filing of the writ of summons. Importantly, in the days between the filing of the writ and the expiration of the statute of limitations, counsel for the plaintiff exchanged emails with the third-party administrator concerning the plaintiff’s accident but did not mention the filing of the writ of summons. Approximately six months after the writ of summons was file and the statute of limitations expired, the plaintiff filed her complaint. The church organization filed preliminary objections in the nature of a demurrer asserting that the plaintiff failed to comply with the rule set forth in Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), in which the Supreme Court of Pennsylvania held that a writ of summons is effective to commence a lawsuit only if the plaintiff thereafter “refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.” The Superior Court held that the plaintiff did not make a “good-faith effort to effectuate notice of commencement of the action” within the thirty-day window following the writ of summons. The key holding of the case is that generally, in Pennsylvania, communication between a plaintiff and a defendant's insurance carrier does not qualify as a good faith attempt at service under Lamp. In Pennsylvania, “the plaintiff is always required to undertake diligent efforts to effectuate notice under Lamp.” Where, as in Senyk, the plaintiff does not comply with their obligations to make a good-faith attempt and undertake diligent efforts, the court will grant preliminary objections in the nature of a demurrer in favor of the defendant. Thanks to Jason Laicha for his contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Dismissal Sanction at Trial Backfires on Defendant (NY) September 1, 2016 < Back Share to: All parties in civil suits in New York are obligated to provide relevant information—including documents, videos, and photographs—in response to demands for same. Parties that “willfully or contumaciously” fail to disclose this information are subject to sanction at the Court’s discretion. These sanctions may result in fines or exclusion of the evidence from use at trial, and can even result in the parties’ complaints or answers being stricken. In Fox v Grand Slam Banquet Hall , the plaintiff allegedly tripped and fell on wires while attending a party at the defendant’s facility. During plaintiff’s cross-examination on the third day of trial, she admitted that she had just the prior day found a video of the party. The video had been mislabeled and, consequently, never turned over to defendant in discovery. The plaintiff only provided the video to her attorney before testifying that day, but both the Court and defendant did not discover the video’s existence until during plaintiff’s testimony. The plaintiff did not attempt to introduce the video into evidence and agreed to preclude its admission into evidence (despite the fact that its footage may have been beneficial to her case). She also agreed to strike all testimony about the video. The defendant requested that the presiding judge strike plaintiff’s complaint as a discovery sanction. The judge did so, and plaintiff appealed. The First Department unanimously reversed the trial court’s ruling and ordered a retrial, holding that the trial court had abused its discretion when it dismissed the complaint for failure to disclose the video before trial. The Court held that the plaintiff’s failure to locate or disclose the video of the party did not appear sufficiently willful or contumacious. The Court was not persuaded that the failure to produce the video result in sufficient prejudice to defendant to warrant dismissal of the complaint, particularly in light of the fact that the video would not be introduced at trial. Furthermore, defendant’s discovery demands to plaintiff only requested she turn over photographs in her possession, there was no Court order during discovery requiring plaintiff to turn over video evidence, and there appeared to be confusion amongst the parties during discovery as to whether a video of the party even existed. Under these circumstances, the Court reversed the dismissal. To mitigate prejudice to the defendant in a retrial, the Court granted the defendant an opportunity to conduct additional discovery and to depose the videographer and plaintiff. However, critically, plaintiff may be permitted to introduce the video into evidence during the retrial. This case serves as a reminder to serve broad discovery demands upon opposing counsel. It also serves as a warning to parties against requesting their opponents’ pleadings be stricken where merely excluding the evidence would sufficiently protect their interests. The consequences of a retrial with additional, admissible evidence may be severe. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact