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

News First Department Sustains Multi-Million Pre-Impact Terror Awards Following Crane Collapse (NY) September 21, 2017 < Back Share to: In Matter of 91st St. Crane Collapse Litigation, the First Department recently upheld a multi-million dollar jury award for pre-impact terror, potentially altering the landscape of such awards in the future. At the very least, this decision will alter how plaintiffs litigate pre-impact terror. (There were also significant awards for conscious pain and suffering, and punitive damages, which we will not address in this post.) The case arose from two consolidated wrongful death actions following a catastrophic crane collapse on East 91st Street in Manhattan on May 30, 2008, which killed the crane operator, Donald Leo, and another construction worker, Kurtaj. The crane was 205 feet high, had four main components: a tower, a cab, a boom, and a counterweight assembly. The counterweight assembly and boom rested on a turntable, which allowed the whole crane to rotate. During the trial, which lasted almost a year, evidence came forth that prior to bringing the crane to the site, a bearing ring in the turntable developed a crack and required replacement. Plaintiff NY Crane, at the direction of its owner, Plaintiff James Lomma, chose to replace this key part of the crane using a Chinese company that it found through a Google search, instead of a more expensive, but reputable American company. Even after the Chinese company expressed doubt that it could correctly assemble the bearing ring, plaintiff’s chose to move forward. Before the crane could be used again, the new bearing had to be certified by the New York City Department of Buildings. Lomma and NY Crane contacted a number of engineers, all of whom refused to certify that the bearing was safe. Despite this, Lomma, who was not an engineer, self-certified the part and expedited the DOB process so that the crane could go back to work. According to the Court, the plaintiffs’ deaths “arose from a series of calculated decisions made by Lomma over a period of months, during which time Lomma placed profit over the safety of construction workers and the public, despite having multiple opportunities to change course.” On May 30, 2008, the bearing ring failed. At approximately 8:00 a.m., the crane began to tip backwards, causing the boom to flip and strike the building across the street. Witnesses testified that they saw Leo, the crane’s operator, visibly panicked inside the cab as the crane tipped backwards, bounced off another building, and then ultimately fell to the ground. They testified that they saw him praying and trying to brace himself against the cab glass as he plummeted toward the ground. Similarly, witnessed testified that Kurtaj, who was on the ground, saw the crane falling toward him and yelled to his coworkers, “Run, run, the crane is coming down.” Medical testimony showed that both Leo and Kurtaj were aware of their impending deaths, and that neither of their deaths were immediate. Based on Kurtaj’s defensive wounds, a medical expert testified that he tried to protect himself with his arms from falling debris. Rescue workers testified that Kurtaj was alive and conscious while trapped under the wreckage, and that he was heard screaming and in obvious pain. He had also been doused in diesel fuel, causing him to vomit and choke on noxious fumes and smoke. He was taken to the emergency room, where he died approximately four hours after his initial injury. Similarly, witnesses and EMS technicians testified that Leo was alive, with his eyes open and shaking, when they found him in the rubble. Rescue workers determined that his time of death was approximately 15 minutes after the accident. A Manhattan jury awarded the decedents of plaintiff Leo $7.5 million for pre-impact terror, $8 million for pain and suffering and $24 million in punitive damages. The jury awarded the decedents of plaintiff Kurtaj 7.5 million for pre-impact terror, $24 million for pain and suffering, and $24 million in punitive damages. On appeal, a unanimous First Department slashed those awards, but still awarded $2.5 Million and $2 Million in pre-impact terror to Leo and Kurtaj, respectively. Decedents of plaintiff Leo ultimately received $5.5 million for pain and suffering and $8 million in punitive damages, while decedents of plaintiff Kurtaj received $7.5 million for pain and suffering and $9.5 million in punitive damages. Even with these reduced awards, these are some of the largest pre-impact terror awards ever awarded in the State. Given the defendants’ actions, it is possible that these huge pre-impact terror were actualyl designed to punish Lomma’s “calculated decisions” that ultimately lead to the collapse. In other words, the jury may have rendered a "punitive" pre-impact terror award here. And even through the Court reduced the award, J. Webber nevertheless awarded more significant pre-impact terror damages than we commonly see. Plaintiff’s attorneys in New York will almost certainly make concerted efforts to present specific evidence of pre-impact terror in wrongful death cases. In this case, there was very specific evidence of the actions of both decedents after the accident, supporting their respective fears of impending death. While every wrongful death case will not have such specific testimony (in fact, most do not) we expect all plaintiffs in wrongful death cases to cite this decision to support their sustainable damages claims in New York. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Jason Laicha Promoted to Senior Associate January 3, 2025 < Back Share to: WCM is pleased to announce that Jason Laicha has been promoted to the rank of Senior Associate. A graduate of Temple University, James E. Beasley School of Law and Villanova University, Jason is based in WCM’s Philadelphia office. He focuses his practice on coverage work in Pennsylvania, New Jersey, and New York. Jason started with WCM as a first-year attorney. Congratulations to Jason on your promotion! Previous Next Jason Laicha Jason Laicha Counsel +1 267 239 5526 jlaicha@wcmlaw.com 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 Trial Practice is Real (PA) March 12, 2020 < Back Share to: A recent case in Pennsylvania illustrates the importance of preserving objections at various points during trial. The case Dempsey v. Josiassen et al. illustrates objections related to the jury verdict sheet and jury instructions once a case has concluded. In this personal injury case, plaintiff Dempsey was a passenger in a car driven by defendant Osbourne. As Osbourne was slowly driving down a street in Philadelphia, defendant Josiassen opened his car door. Osbourne was unable to avoid a collision with the door. Dempsey sued both defendants for negligence claiming various bodily injuries. At trial, both vehicle operators presented evidence of their reasonable behavior under the circumstances, including facts such as the host driver stating he was driving 10-15 miles per hour and traffic conditions prevented his accident avoidance. The stationary operator testified that he parked close to the curb and checked his surroundings before opening the door. Plaintiff testified that she was unaware of anything her driver did to cause the accident. The defendants also presented evidence of the passenger's preexisting injuries. Prior to deliberations, the trial court instructed jurors to decide and submit by special interrogatories whether Osbourne and/or Josiassen were negligent. The jury was not instructed that one or the other must be found negligent. Moreover, the jury was instructed that Dempsey could not recover if neither defendant was negligent. Inevitably, the jury found that Osbourne and Josiassen were not negligent and the case was dismissed. Plaintiff's counsel filed a timely post-trial motion asserting that Josiassen was negligent as a matter of law and that the jury’s verdict was against the weight of the evidence. That motion, which lacked any substantive weight of the evidence argument, was denied because the record reflected that Dempsey did not object to the verdict until after the jury was dismissed. Stated another way, plaintiff failed to object to the jury instructions and verdict sheet prior to the conclusion of the case. The Superior Court ultimately found that Dempsey had waived her right to object to the verdict and failed to convince the court that the post-trial motion was anything more than sour grapes. Plaintiff's counsel's motion leaned heavily on the improper jury instructions and the court denied the motion because the opportunity to challenge the verdict was waived by her failure to preserve the issue at trial. The Court reasoned that Dempsey did not object to the instruction, verdict sheet, or verdict until she determined that she did not appreciate the outcome. Therefore, the judgment was affirmed. Trials are fraught with appealable issues, so it is the trial attorney's task to raise objections for the issues to be preserved for an appeal. Some issues can be anticipated, while some cannot. A seasoned trial attorney would recognize the potential disastrous outcome of the verdict sheet, object and live to fight another day. Thanks to Gabrielle Outlaw for her contribution to this post. Please contact Vincent Terrasi with any questions or comments. Previous Next Contact

News Labor Law Protections: Not Always Absolute June 25, 2010 < Back Share to: In Moracho v. Open Door Family Med. Ctr., Inc., 2010 NY Slip Op 05657 (1 Dept. 2010), plaintiff, an asbestos worker, was injured when he fell through an open skylight on the roof of a building owned by Open Door, which was being renovated by general contractor Scully. All parties moved for summary judgment, and plaintiff’s motion was ultimately granted as to liability on his Labor Law § 240(1) claim against defendants Open Door and Scully. The First Department reversed the trial court’s decision, holding that summary judgment should not have been granted because the record consisted of conflicting testimony as to whether a safety vest was available to plaintiff, whether he was aware of the expectation that he would "tie off" the vest, and, if so, whether "he chose for no good reason not to do so." Thus, the First Department reaffirmed that the broad protections offered under Labor Law § 240(1) may still be restricted due to conflicting testimonial evidence as to the existence of safety equipment and the plaintiff’s failure to use such equipment. Meanwhile, the court also upheld the denial of Scully’s motion for summary judgment, noting that although the asbestos contractor performed the relevant work, Scully, as general contractor, was still contractually responsible for preventing accidents and taking reasonable precautions to prevent injuries. What’s more, the record established that Scully had access to the site and involvement with the project. Thus, despite a lack of control over the subcontractor, the court reinforced the principle that the general contractor must still provide safety devices to prevent injuries. Special thanks to Lora Gleicher for her contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05657.htm Previous Next Contact

News Second Department Expands Labor Law 240 to Fall from 8 Inch Platform March 21, 2016 < Back Share to: The majority in the Second Department expanded Labor Law 240 to encompass a fall from an 8-inch high platform of a prime mover (a mini forklift). In Somereve v. Plaza Construction Corp., plaintiff operated a prime mover to hoist a load of bricks onto scaffold approximately six feet high. While plaintiff was operating the machinery and placing the bricks atop the scaffold, the forklift flipped forward and plaintiff fell off the platform of the machine onto the floor. The majority found plaintiff was catapulted from the machine – he was ejected upward, hit the ceiling and was slammed to the ground. The majority found this sequence of events ‘gravity related,’ regardless of the fact that the platform from which plaintiff fell from was eight inches high. Plaintiff moved for partial summary judgment on the Labor Law § 240(1) claim prior to the completion of depositions. Plaintiff’s motion was granted on the basis the prime mover moved forward due to the force of gravity and failed to offer adequate protection to the plaintiff. The Court found that if the accident occurred because the mover or the scaffold could not support the weight of the bricks, gravity applied during the hoisting operation and plaintiff was entitled to summary judgment. The majority of the court did not require further discovery or depositions since comparative negligence was not a defense to Labor Law § 240. The dissent found the majority’s reasoning conclusory since there was no defect in the machine or the scaffold or any evidence that the mover could not support the weight of the bricks. The minority argued that the platform of the machine was not a type of elevation related risk enumerated in the statute, the fall was de minimis and plaintiff could not provide an explanation as to how his accident occurred. Plaintiff did not argue that a hoisting device should have been provided, and no evidence was offered to show that a hoisting device was even proper equipment for plaintiff to work at the time of his injuries. Further, the dissent argued there was a factual issue as to whether plaintiff’s injuries were caused solely by his own negligent operation of the machine and further discovery and depositions were necessary to determine the intricacies regarding plaintiff’s accident. The First Department has continually expanded the reach of Labor Law 240, and now we see that the Second Department is following suit. Previously the height from which a plaintiff fell could create a de minimus fall defense, but with each decision expanding Labor Law 240 application, it appears that the Appellate Divisions are chipping away at that defense. Thanks to Poonam Sethi for her contribution to this post.       Previous Next Contact

News Sanctions Or A Slap-On-The-Wrist? (NY) November 11, 2022 < Back Share to: In Castillo v. Charles (2022 NY Slip Op 06103), an action to recover damages for personal injuries, the Appellate Division Second Department, department modified the lower courts order striking the plaintiff’s pleadings, as it was “too drastic of a remedy” (see Turiano v. Schwaber, 180 AD3d 950, 952; see also Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 211). Here, plaintiff violated court multiple court orders including those directing her to appear for a continued deposition. Plaintiff also failed to disclose photographs referenced in her first deposition, and failed to provide authorizations to obtain records from certain medical providers. The court agreed that the record supports an inference of willful and contumacious behavior, striking the pleading, in this instance, was too drastic of a remedy. The court modified the lower courts order, granting defendant’s motion only to the extent of precluding plaintiff from using the undisclosed photographs at trial, directing plaintiff to provide medical authorizations demanded by defendants and directing plaintiff’s counsel to personally pay $3,000 as a sanction to defendant. Sanctions are intended to reinforce the notion that all parties must “play by the rules”. This decision hands out a slap-on-the-wrist as a penalty for plaintiff, while ignoring the fact that failing to disclose evidence could be detrimental to opposing counsel’s ability to make or defend their case. Thanks to Kara Nelson for her contribution to this article. Should you have any questions, please contact Heather Aquino. Previous Next Contact

News Appellate Court Grants Product Recall Insurers Big Win. November 11, 2011 < Back Share to: There aren't many product recall decisions out there, but every once in a while they come along. In the Fresh Express case in California, contaminated spinach was at issue. The trial court ruled for the insured and awarded policy limits of $12,000,000. The case went up on appeal and the California appellate division has now justweighed in. The appellate division reversed the trial court. Of significance, the appellate division held that not every contamination is an insured event, i.e. not every contamination is accidental thereby triggering coverage. This is good news for product recall insurers as insureds (and courts) have a tendency to equate the two. For more information about this post or WCM's product recall practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News What Is A Passageway Under NY Labor Law?” (NY) January 20, 2023 < Back Share to: When a plaintiff alleges a Labor Law 241(6) predicated upon a New York City Rules & Regulations code, the plaintiff must establish a prima facie case that the NYCRR is violated. For example, in Stewart v. Brookfield Off. Props. Inc., 2023 NY Slip Op 00226 (2d Dep’t January 18, 2023), the plaintiff allegedly fell at a construction site while installing a lighting fixture. Plaintiff subsequently commenced a lawsuit against the defendant and depositions were conducted. Plaintiff testified at his deposition that he stepped off of a ladder and immediately tripped on a raised portion of the concrete floor. Thereafter, defendants moved for summary judgment arguing that there was no labor law violation because the plaintiff’s injury did not occur on a passageway, which is a predicate to proving a violation. 12 NYCRR 23-1.7(e)(1), which requires owners and general contractors to keep all passageways free of obstructions which could cause tripping, is inapplicable because the site where the plaintiff allegedly tripped was not a passageway. Specifically, the Court stated, “In order to establish liability under Labor Law § 241(6), a plaintiff must "establish the violation of an Industrial Code provision which sets forth specific safety standards," and which "is applicable under the circumstances of the case.” The lower court held, and the second department recently affirmed, that the defendant’s established the plaintiff’s injury did not occur in a passageway and therefore, there was no NYCRR violation. Accordingly, summary judgment was granted to the defendant. Thanks to Lauren Howard for her contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News PA Supreme Court Virtually Eliminates Sidewalk Liability for Municipalities. May 22, 2009 < Back Share to: In the case of Reid v. City of Philadelphia, the plaintiff slipped on snow and ice that had accumulated on a sidewalk adjacent to a Philadelphia police station. The plaintiff proved that the City was negligent in its removal of snow and ice, but in opposition the City argued that it was exempt from claims under 42 Pa.C.S. § 8541, the Political Subdivision and Tort Claims Act. Plaintiff argued that the 8542(b)(3) exemption (which holds that a municipality can be primarily liable for failure to maintain real propery) applied. The trial court and Commonwealth court agreed with plaintiff. The Supreme Court, however, disagreed, It held that the 8542(b)(3) exemption does not apply to sidewalks – only real property. http://www.pacourts.us/OpPosting/Supreme/out/J-95-2007mo.pdf Previous Next Contact

News PA Court Vacates $35 Million Award due to Plaintiff's Potential Negligence May 25, 2018 < Back Share to: Under the Pennsylvania’s Comparative Negligence Act, a plaintiff’s contributory negligence can be considered when compared to a defendant’s negligent conduct— but not to reckless conduct. Recently, the Superior Court established an interesting work-around in the context of multi-plaintiff actions, where one plaintiff can be held liable to the defendant for contribution and indemnity for the harm that plaintiff’s actions contributed to the other plaintiffs’ injuries. In Straw v. Fair, Plaintiff John Straw was driving with three family members on the highway when the car’s failed hood mechanism caused the hood to open and obstruct his view. Mr. Straw stopped the car in the travelling lane and turned on his hazard flashers. Kirk Fair was driving a truck for Golon Masonry behind the Straws. Mr. Fair was under the influence of drugs, did not notice the stopped car, and crashed into the Straws at approximately 60 miles per hour. The accident seriously injured Mr. Straw and two of the passengers; the Straws’ six year-old-son died. Mr. Fair was convicted of several crimes, including DUI and Recklessly Endangering Another Person (REAP). Golon Masonry filed a cross-claim against Mr. Straw for indemnity and contribution. The basis of the claim was that Mr. Straw was responsible for the passenger’s injuries because he did not need to leave the car in the running lane. The Straws filed a motion for summary judgment of Golon Masonry’s cross-claim, and the trial court ruled that because Mr. Fair’s conduct was reckless—as evidenced by his guilty plea to REAP—Mr. Straw’s comparative negligence could not be considered because the Act only applies to a defendant’s negligent conduct. The case went to trial and the jury returned a verdict of $35 million. The Superior Court reversed the trial court’s finding because it “mistakenly confused [Golon Masonry’s] cross-claim against Mr. Straw with [Golon Masonry’s] affirmative defense that Mr. Straw was comparatively negligent for his own injuries.” The Superior Court reasoned that the trial court was correct in interpreting the Act as not applying to reckless conduct. However, in asserting a cross-claim for indemnity or contribution, defendants were not alleging that Mr. Straw’s negligence should not reduce or diminish his recovery. Rather, the cross-claim alleges that Mr. Straw’s negligence renders him directly liable to the passengers or to defendants for contribution. Thus, Mr. Straw was essentially just another defendant as to this cross-claim. The Superior Court clearly held that Pennsylvania law permits contribution between reckless and negligent co-defendants—and in this context can be applied to a plaintiff. As a result, the Superior Court reversed the trial court’s motion for summary judgment and vacated the $35 million verdict. Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact