News Do You Need to Remove the Snow? April 22, 2020 < Back Share to: In Dembele v 373-381 Pas Assoc LLC, the Appellate Division, First Department addressed whether the defendants – restaurant and landowner had an obligation to remove snow and ice from the sidewalk abutting the property. The Bronx County Supreme Court granted the defendant and third-party defendants summary judgment motion on the basis that they did not have a duty to remove the snow and ice on the abutting sidewalk. However, the Appellate Division unanimously reversed the Supreme Court. Plaintiff, an employee of the restaurant owned by third party defendant, sustained personal injuries after falling on snow and ice on a ramp leading from the side door of the restaurant to the abutting sidewalk. The restaurant leases the property from defendant – landowner. The ramp at issue is over the public sidewalk alongside the restaurant. The Appellate Division held that even though the lease between the defendants obligated the restaurant to remove snow from the sidewalk, it did not absolve the owners of the property of their nondelegable duty to keep the sidewalk in safe condition. This decision serves as a reminder for building owners to do all they can to keep their sidewalks safe, notwithstanding the language in their lease with a tenant. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

For 25 years, foreign and domestic insurers have looked to WCM to represent their interests in controversies involving fine art and specie. Our claims and defense work in this niche market is international in scope and has taken WCM lawyers to many parts of the globe–London, Paris, Antwerp, Rome, Dubai and Hong Kong. Our work embraces claim investigation and litigation relating to fraud, theft, physical damage, authenticity and recovery of stolen property. Our reputation for excellence and deep understanding of the issues that confront the Underwriters who insure the world’s valuables give our clients a distinct advantage in this highly competitive arena, and we are often called upon to conduct seminars on emerging trends and to give advice on policy wordings. WCM lawyers know this world and we achieve consistently superior outcomes for our clients. Fine Art and Specie For 25 years, foreign and domestic insurers have looked to WCM to represent their interests in controversies involving fine art and specie. Our claims and defense work in this niche market is international in scope and has taken WCM lawyers to many parts of the globe–London, Paris, Antwerp, Rome, Dubai and Hong Kong. Our work embraces claim investigation and litigation relating to fraud, theft, physical damage, authenticity and recovery of stolen property. Our reputation for excellence and deep understanding of the issues that confront the Underwriters who insure the world’s valuables give our clients a distinct advantage in this highly competitive arena, and we are often called upon to conduct seminars on emerging trends and to give advice on policy wordings. WCM lawyers know this world and we achieve consistently superior outcomes for our clients. Practice Lead Dennis M. Wade Partner +1 212 267 1900 dwade@wcmlaw.com Download Download

News An Unusual and Violent Bus Stop (NY) August 10, 2012 < Back Share to: Bus riders in New York City are familiar with the usual "jerks and jolts" that occur when riding a bus in heavy City traffic. However, a bus driver that makes an "unusual and violent stop" may be negligent. In Lewis v. Metropolitan Transportation Authority, the plaintiff was injured when a bus on which she was a passenger stopped suddenly, causing her to fall. The Supreme Court, Queens County was faced with the question of whether the bus driver made an "unusual and violent stop". The bus driver testified that he was in traveling about 15 mph in heavy traffic "at least a car length" behind a passenger car, when the car stopped suddenly in an intersection. The bus driver hit the brakes and stopped the bus from hitting the car. The MTA moved for summary judgment on the grounds that the stop was not "unusual and violent. Further, the MTA argued that they were entitled to summary judgment under the "emergency doctrine". The Supreme Court, Queens County, denied the motion. On appeal, the Appellate Division, Second Department upheld the lower court's decision, holding that the bus driver's testimony that he was traveling as fast as 15mph and as little as one car length behind the car before it stopped suddenly demonstrates a question of fact. Further, the court held that the emergency doctrine does not apply because the bus driver was reacting to a common traffic occurrence and not an emergency. Thank you to Ed Lomena for his contribution. For more information, contact Denise Ricci at dricci@wcmlaw.com   Previous Next Contact

News PA Supreme Court Limits Scope of Sexual Discrimination Claims. July 24, 2009 < Back Share to: In the case of Weaver, et al. v. Harpster, et al., the plaintiff alleged that she was forced to leave her job at a small office because of unwanted (and rejected) sexual advances. She filed suit and alleged violations of the Pennsylvania Human Relations Act or the common law. The Supreme Court dismissed the lawsuit. It held that companies with less than four employees are not subject to the Pennsylvania Human Relations Act (which prohibits sexual discrimination). http://www.pacourts.us/OpPosting/Supreme/out/J-53-2008mo.pdf Previous Next Contact

News How COVID-19 Is Impacting Your Claims, as of March 20, 2020 March 16, 2020 < Back Share to: As of March 20, 2020, while some Courts where we practice, like New York and Pennsylvania, have issued more specific information about remote conferences and the like, trials and in-person conferences remain on hold. The CDC has recommended against 50-person gatherings through mid-May, and we doubt Court proceedings will return to "normal" before that time. Just yesterday, on March 19, 2020, the NY Chief Administrative Judge issued an updated order, wherein, all NY Courts "strongly discourage" any attorney functions that require any in-person congregation at all, including depositions or appearances. Moreover, the Courts have finally addressed summary judgment motion deadlines, which have been a primary concern of plaintiffs and defendants. Judge Marks suggests that if any party is unable to meet a litigation deadline, including a summary judgment deadline, parties shall use "best efforts" to stipulate to an extension. The implication, we think, is that if an attorney seeks a deadline extension during the shutdown, in good faith, Courts are more likely to consider that request, when deciding whether that motion was timely. As we and our colleagues on the bar, both plaintiffs and defendants, grapple with the challenges presented by the current climate, we think extensions of courtesies should be universal, and will be guided accordingly by J. Marks's words. The remainder of the information below, originally posted on Monday, March 16, 2020, is largely still accurate, and has been updated for publication on March 20, 2020. In the scheme of things, how we practice law and handle claims is far less important than your health and safety. To that end, we wish you all good health and safe (limited) travel, as we all navigate this new landscape. The past several days have been rife with uncertainty for all of us, within and without the United States, and we, like all of you, have been monitoring recommended COVID-19 protocols. As we noted in our emailed post on Friday, WCM remains fully operational, despite what has evolved into mandatory remote working for our attorneys and staff, for the next several weeks. Despite the social distancing directives, life goes, on, and we all have work to do. Going forward, we will continue to monitor Court updates, and will advise you all accordingly. In keeping with the times, WCM had already implemented a remote access system and a cloud-based case management system. (In all candor, while we did not intend to roll this program out to all attorneys at once, in a 24 hour window, we are equipped to continue to practice, remotely.) As unprecedented and frustrating as this situation seems, we are all fortunate that COVID-19 did not surface as recently as five years ago, when remote work and paperless function were far less operational than they are in 2020. Now, specifically, what direction have we received from the Courts about the impact of COVID-19 on our cases? It depends on the Court, and the answers seem to vary hour by hour. We will continue to monitor all the jurisdictions where we practice, but hereby provide an update on what we know, as of March 20, 2020. Just days ago, the CDC recommended that gatherings of 50 or more people be cancelled or postponed for the next eight weeks, which effectively eliminates jury trials and in-person court conferences into mid-May. We have collected the following information from our Courts of practice, as of this morning: In New York, effective March 16, 2020, all jury trials and in person court conferences are suspended until further notice. Courts are still functioning, motions are being submitted and decided without oral argument, and court conferences are being conducted via stipulation, among the attorneys.Pennsylvania Courts have taken different measures, depending on the County. Philadelphia remains the most backward as of this morning, but we expect an update soon. Montgomery County, for example, has officially suspended all jury trials through March 27, 2020, and we suspect, will extend this date in the coming days. While a few other counties have not made official press releases clear yet, the PA governor has strongly discouraged large gatherings, which essentially prohibits jury duty and in-person conferences. Update -- Philadelphia is now shut down until April 1. In New Jersey, jury trials are suspended as of March 16, 2020, discovery deadlines are relaxed for the next two weeks , and court adjournments are being entertained on a case-by-case basis.Federal Courts’ directives differ based on locale, but the SDNY, for example, has suspended jury trials through April 27, 2020, whereas the Eastern District of PA has suspended them through April 13, 2020. Other federal courts are less specific, but we anticipate additional directives to be issues in the coming days. So in terms of how the Courts are dealing with COVID-19, there are no appearances for the foreseeable future. We have not received any guidance from the Courts as to how COVID-19 will effect discovery end dates, but we will continue to monitor the situation. But what about Depositions and Examinations Under Oath, which do not take necessarily require Court participation? While WCM is equipped and prepared to commence remote depositions, our adversaries have may have differing technological capabilities, and it takes global participation to make these arrangements viable.We also note that many of our vendors offer remote deposition capabilities, which we can explore, depending on the nature of the testimony.By March 30, 2020, we expect remote / telephonic depositions to become more normalized where we practice, and recommend a case-by case (or, in fact, a witness by witness) collaborative evaluation, as to whether remote testimony is worth pursuing. The “big picture” takeaways for WCM and our partners are that jury trials are on hold for now and in-person Court conferences are suspended, which makes sense, given the social distancing recommended by the CDC. But Courts are still functioning, motions are being decided, and attorneys can still reach each other. So our attorneys and staff are still working full time, remotely, as we continue to await further directives from the experts and authorities. Attorneys are most easily reachable by email, and all contact info is accessible at wcmlaw.com. We will continue to monitor updates in all jurisdictions where we practice, and will keep you apprised. In the interim, please stay safe, follow CDC recommendations, and please reach out to us with any questions. Previous Next Contact

News Mode of Operation Rejected in Sandwich Shop Slip (NJ) October 20, 2017 < Back Share to: In Hockman v. Burrellys LLC, a New Jersey Court recently dealt with the "mode of operation" doctrine in the context of a fall in a sandwich shop. Ordinarily, an injured plaintiff attempting to recover damages under a theory of negligence must prove that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. However, under the mode of operation doctrine, a plaintiff is relieved of proving actual or constructive notice where as a matter of probability, a dangerous condition is likely to occur as a result of the nature of the business. The burden is then shifted to the defendant to prove that it had taken reasonable steps to avoid the potentially dangerous condition. Importantly, for food services, the mode of operation theory had never expanded beyond the self-service customer setting where customers independently handle merchandise without employee assistance (e.g. supermarket fruit stands, salad bars, buffet-style delicatessens). In this case, plaintiff approached the service counter to place her order. After ordering her sandwich, plaintiff decided to step outside to check if her car was legally parked. As she proceeded towards the exit, she slipped and fell on an unknown substance. Plaintiff testified that she did not see any liquid in the area where she fell, but she noticed that the bottom of her jean cuff was wet. The defendant shop-owner, who was the only other person present in the shop at the time of plaintiff’s fall, testified that she did not see anything on the floor. She also usually swept the shop’s floor in the afternoon and mopped at the end of the day. In addition, the last customer departed more than thirty minutes prior to plaintiff’s arrival. At trial, plaintiff’s liability expert explained that plaintiff’s slip was caused by a hydroplaning effect—the tile flooring allowed liquid to freely move over the surface. He further opined that in a sandwich shop, liquids such as oil, vinegar, soda, and water have a probability of getting onto the floor. He also noted that the sandwich shop did not have standard procedures for inspections or maintenance, and did not place down mats or warning signs. At trial, the jury was charged under mode of operation doctrine and awarded plaintiff $1,280,081.67 in damages. Defendant subsequently appealed asserting that the trial court erred by denying summary judgment on the issue of causation because plaintiff presented no evidence that she slipped on any substance. On appeal, the Appellate Division found that the trial court erred by finding that mode of operation doctrine applied to the facts of this case. The shop-owner explained that sandwiches were prepared and wrapped for customers. Although the shop had a refrigerator with prepackaged salads and beverages, plaintiff did not establish that the dangerous condition in this case was due to how these items were handled by other customers. Moreover, plaintiff had no idea what caused her to fall or why her jean cuff was wet. As such, without the mode of operation doctrine, plaintiff was required to prove that defendant had notice of the allegedly dangerous condition. Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Personal Liability And The New Jersey Consumer Fraud Act March 8, 2024 < Back Share to: Individual defendants can be held personally liable under the New Jersey Consumer Fraud Act (“CFA”). The New Jersey Supreme Court has explained under what circumstances the owners and employees of a corporation may be individually liable for CFA violations that are directly attributable to acts undertaken by them through the corporate entity. Allen v. V & A Bros. , 208 N.J. 114, 117, 26 A.3d 430, 432 (2011). In 2002, plaintiffs purchased a home in Princeton Township that was in need of landscaping. The scope of that work included building a retaining wall and creating a level area on the property where the pool could be installed. Plaintiff contracted with V and A Brothers, Inc. to level the property and build the retaining wall. While constructing the retaining wall, V&A Bros did not obtain final approval to substitute the type of backfill used to support the wall. The construction of the retaining wall required the use of backfill to support the wall. Plaintiffs assert that V and A Brothers, Inc. did not use the specified backfill, but instead substituted an inferior grade of fill that defendants trucked to plaintiffs' property from one of defendants' other construction sites. The trial court granted a motion to dismiss the complaint against the individual defendants. Reasoning that the CFA did not create a direct cause of action against the individuals, the court instead applied a traditional veil-piercing approach to plaintiffs' claims against the individuals. The Appellate Division reversed the trial court’s order dismissing the claims against the individual defendants finding support for individual liability in the statutory language of the CFA. The Supreme Court of New Jersey granted defendants’ petition for certification in which they challenged the conclusions of the appellate panel as to the basis for imposing individual liability. They conclude that, “focusing first on the statute's definition of person, N.J.S.A. 56:8–1(d) , there can be no doubt that the CFA broadly contemplates imposition of individual liability . The very breadth of the definition itself lends strong support to the proposition that, the CFA permits the imposition of individual liability upon one whose acts are part of a violation by a corporation.” The more complicated question raised in Allen , was whether an employee or officer of a corporation may also be liable individually when the basis for the CFA claim is a regulatory violation rather than an affirmative act or knowing misrepresentation. The Supreme Court found this to be a more fact sensitive determination and used this example for instruction. “A distinction can be drawn between the principals of a corporation and its employees. However, if the employee unilaterally concludes that an inferior product should be used in place of one specified in a contract and does so without the knowledge of the homeowner, there is little reason to construe the CFA to limit liability to the corporate employer and permit that employee to escape bearing some individual liability . Allen v. V and A Bros Inc. .pdf Download PDF • 310KB Previous Next Anand P. Tayal Anand P. Tayal Associate +1 267 665 0014 apandittayal@wcmlaw.com Contact

News Can A New York Property Owner Be Liable For A Plaintiff’s Unforeseen Conduct? December 3, 2021 < Back Share to: In Morales v. Mid Bronx Senior Citizens Council, Inc., a New York trial court recently addressed whether commercial property owners were liable for an accident caused by a plaintiff’s unforeseen conduct. Plaintiff in that case alleged that after the conclusion of his employment training at a senior citizen’s home, he attempted to leave the property, but the gate was locked. He then attempted to reenter the building, but that door was locked as well. When plaintiff could not get anyone to answer the door, he tried to leave the property by climbing a 15-foot wall and was injured when he jumped down. The defendants moved for summary judgment in the resulting personal injury lawsuit, arguing that no dangerous condition existed, plaintiff’s actions were the proximate cause of his injures, and that they could not have foreseen such conduct. The court agreed and found that “a reasonable person in plaintiff's situation would not have climbed over an extremely high wall, instead they would have called for help or waited for assistance.” The court held that plaintiff's reckless conduct caused his injury and not the locked gate, which is “not a dangerous condition in and of itself.” The court added that the decision to climb over the wall and jump down “could not have been a natural and foreseeable consequence” of leaving the gate locked. Accordingly, the court found that the locked gate was not the proximate cause of the plaintiff's injuries and summary judgment was appropriate under the circumstances. The Morales decision serves as a reminder that property owners in New York are not subject to liability for injuries or conduct that they could not reasonably foresee. Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions Previous Next Contact

News U.S. Copyright Office: Artwork Created Through AI Is Not Afforded Copyright Protection May 19, 2022 < Back Share to: The U.S. Copyright Office recently rejected a second request for copyright protection on a work of art created through artificial intelligence (“AI”). Steven Thaler is a self-proclaimed AI pioneer and creator of the artificial intelligence program called the “Creativity Machine.” In essence, the Machine uses a computer algorithm to generate images with little to no human interaction. In November 2018, Thaler filed an application in the US Copyright office for a work titled “A Recent Entrance to Paradise,” and listed the Machine as the artist itself. The work was part of a series generated by the Machine that was programmed to create “hallucinatory images about the afterlife.” In August 2019, the Copyright office rejected Thaler’s application because the Machine-generated work “lacked the human authorship necessary to sustain a claim in copyright.” Thereafter, Thaler asked the office to reconsider its decision and argued that the “human authorship” standard was unconstitutional. Upon its second review, the Office affirmed its initial denial. In a letter to Thaler’s attorney, the Office emphasized that the Copyright Act “only protects the fruits of intellectual labor” that are “founded in the creative powers of the mind.” Under that standard, a work that was created without contribution from a human author was ineligible for registration. The issues raised by Thaler’s application, and the Office’s responses to those questions, are both legal and existential in nature. At what point is an operation performed by a machine – that is, a machine that a human mind envisioned and created – no longer a “fruit of intellectual labor”? The Copyright Act is notoriously complex and unpredictable, and its application in the up-and-coming field of AI will be interesting to follow. Thank you to Alexandra Deplas for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News PA Appellate Court Finds that You’re “At Work” While on Your Commute April 8, 2022 < Back Share to: In Bark v. Sooner Steel LLC, the Pennsylvania Commonwealth Court held that a worker was acting within the course and scope of his employment while commuting home from work. The court emphasized that whether someone is acting within the course and scope of his or her employment is a fact specific inquiry. In Bark, the claimant suffered severe injuries in a motor vehicle accident that occurred while he was returning home from work. Before the accident, the claimant, Mr. Bark, and his employer had agreed that he would be paid for the time he worked, as well as the commute. There was, however, no written contract. After the incident, Mr. Bark sought workers’ compensation benefits. The workers’ compensation board denied the claim, finding that the claimant was not acting within the scope of his employment when the incident occurred. Under Pennsylvania law, commuting to and from work is not considered to be within the course and scope of one’s employment (commonly referred to as the “coming and going” rule). There are limited exceptions though. The exceptions are: (1) the employment contract includes transportation to and/or from work; (2) the claimant has no fixed place of work; (3) the claimant is on a “special assignment or mission” for the employer; or (4) special circumstances are such that the claimant was furthering the business of the employer. Each case is extremely fact intensive. Ultimately, the Pennsylvania Commonwealth Court (an appellate tribunal), found that Mr. Bark was acting within the course and scope of his employment when the incident occurred. The court relied on the “humanitarian nature” of the Act. Further, it found that “course of employment” should be broadly construed when the employee is a traveling employee—as Mr. Bark was. Similarly, “course of employment” is broadly construed when there is no fixed place of work. Ultimately, the court determined that Mr. Bark suffered his injuries when while in the “course and scope” of his employment. Thanks to John Lang for his contribution to this article. Should you wish to discuss, please feel free to contact Tom Bracken. Previous Next Contact

News Exclusion for Earth Movement Does Not Apply to Excavation May 18, 2009 < Back Share to: In Pioneer Tower Owners Assn. v. State Farm Insurance, plaintiff, a condominium apartment building, brought a breach of contract action against its carrier to recover for losses resulting from damage sustained to the foundation of its building, which was caused by excavation work done on an adjacent parcel of land. The defendant carrier contended that coverage was excluded under the policy’s “earth movement” exclusion, which precluded coverage for “earth movement, meaning the sinking, rising, shifting, expanding or contracting of earth, all whether combined with water or not. Earth movement includes but is not limited to earthquake, landslide, erosion, and subsidence but does not include sinkhole collapse.” Both parties moved for summary judgment. Plaintiff argued that the exclusion was ambiguous because the intentional excavation of property by humans is different from the examples mentioned in the policy. In contrast, the carrier contended that the exclusion applied because the loss was caused by the “sinking” and “shifting” of earth beneath plaintiff’s building. The Supreme Court, granted plaintiff’s summary judgment motion and the Appellate Division affirmed. On a further appeal, the Court of Appeals affirmed. Although the Court described the controversy as a "close question", the Court found that the carrier’s disclaimer was invalid, as the type of loss was not unambiguously excluded. The Court of Appeals also notes that neither it nor the parties could find any case citation applying an earth movement exclusion to intentional earth removal, such as excavation work. Thanks to Robin Green for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03409.htm Previous Next Contact

News Fantasia's Fall on the Ice February 19, 2010 < Back Share to: Fantasia Massey went to Newburgh, NY to visit her friend Michael Valerie on Sunday, March 11. The visit went well and Fantasia remained inside Mike's apartment without once venturing outside until 9:30 p.m. on Thursday, March 14, when she felt the need to visit a local convenience store. Mike drove Fantasia to the store. He parked his car on the street in front of the store. Fantasia got out of the car and, she says, slipped and fell on ice on the sidewalk in front of the store. She fractured her ankle. She filed suit against the owner of the convenience store. http://www.courts.state.ny.us/reporter/pdfs/2010/2010_30238.pdf The defendant moved for summary judgment, supporting its motion with an expert affidavit and data that showed that the temperature at the time of the accident was 57 degrees and that it had been as high as 73 degrees earlier that day. The expert who interpreted this arcane data opined that there could not have been any ice on the sidewalk during Fantasia's ill-fated trip outside the apartment. The plaintiff countered with her own affidavit, swearing that there was, indeed, ice on the sidewalk. Mike swore to the same. They produced photographs of ice on the sidewalk that they said they took two hours after the fall. The court in New York County denied the defendant's motion, finding a question of fact about the existence of ice. Posted by Maju Varghese. Previous Next Contact