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News Failure To Establish The Standard Of Care In A Pennsylvania Negligence Action Leads To Entry Of Non-Suit June 16, 2023 < Back Share to: In Pennsylvania, expert testimony as to the standard of care and deviation therefrom is most commonly seen (and required) in professional liability cases. However, such evidence can be required in ordinary negligence actions involving subjects that require knowledge, information, or skill beyond what is possessed by the ordinary juror. In Green v. Palfrey, the Pennsylvania Superior Court addressed this issue in a case where a truck driver sustained a shoulder injury while attempting to fill his tanker trailer at the G Street Terminal in Philadelphia. The injury occurred while plaintiff was attempting to lift a heavy fill arm. Plaintiff sued the owner and operator of the terminal, alleging that they negligently operated and maintained the terminal and knew or should have known of the defective condition of the terminal equipment. Prior to the start of trial, defendants moved for compulsory non-suit due to Plaintiff’s failure to prove the applicable standard of care and deviation therefrom. The trial court granted the application. On appeal, plaintiff argued that he was not required to present expert testimony to establish the standard of care and deviation because (1) he raised only an ordinary negligence claim, and (2) the issue as to whether the fill arm was too heavy could easily be understood by the average juror. However, the Court disagreed and affirmed the trial court’s decision, holding that the proper maintenance, design, and inspection of a fuel fill arm is not within the ordinary knowledge or experience of the average lay person. The Court added that without expert testimony as to the complicated equipment, the jury would be left to speculate as to as defendants’ liability. Accordingly, the Court held that there could be no “fair and reasonable disagreement” about whether plaintiff established the standard of care and defendants’ deviation therefrom. The Green decision serves as a reminder that a plaintiff may be required to produce expert testimony in an ordinary negligence case where the liability issues are complex and require specialized knowledge or skill for a jury to resolve. The failure to provide such evidence can result in the dismissal of the case. Thank you to Gianna Hroncich for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Cost-Effective ADR -- Brought About by a Not-So Cost-Effective Appeal (PA) January 10, 2019 < Back Share to: On January 4, 2019, the Superior Court of Pennsylvania vacated a May 23, 2017 ruling in the Court of Common Pleas of Fayette County that overruled the preliminary objections of Golden Gate National Senior Care, LLC. Those preliminary objections sought to compel arbitration. At the trial court level, Golden Gate sought to enforce a compulsory ADR agreement signed by Mildred Snyder’s husband, Donald Snyder, upon Mrs. Snyder’s admission to the Golden Gate National Senior Care facility in 2006. However, the trial court overruled their preliminary objections arguing there was no meeting of the minds as to the ADR agreement, Mr. Snyder lacked the authority to execute the agreement, and the agreement lacked consideration and was unconscionable. The Superior Court quickly determined that lower court abused its discretion in overruling Golden Gate’s preliminary objections. However, the Court first had to determine if it had authority to hear appeal of the interlocutory order. In Pennsylvania, an appeal may be taken from a court order denying an application to compel arbitration made under 42 Pa.C.S.A. 7304. The Pa. Supreme Court in Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490 (Pa. 2016) heard an appeal regarding the enforceability of an ADR provision similar to the provision in the present case. Therefore, the Court ruled it could move forward with reviewing the interlocutory order. Once the court overcame that procedural hurdle, the court quickly disposed of the arguments that the trial court made in declining to enforce the ADR provision as the lower court failed to provide sufficient justification for its actions. Although Golden Gate prevailed on appeal, their frustration at the added expense of motion and appellate practice would be understandable, in light of the clear binding ADR language in the agreement. Thanks to Garrett Gitler for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Landlord Responsible for Burn from Uncovered Radiator (NJ) April 27, 2018 < Back Share to: In J.H. v. R&M Tagliareni, LLC, the New Jersey Appellate Division analyzed whether a landlord owned a duty to protect a minor from a hot and uncovered radiator where it was part of the building’s entire heating system. Plaintiff is a minor who sustained third-degree burns on his head, right cheek, and left arm while sleeping next to an uncovered radiator in defendant’s apartment building. The radiator was controlled by an on and off shut-off valve at its base inside the apartment unit. The heat flowing into the radiator could only be manually turned on or off at the shut-off valve and the unit did not possess a thermostat to regulate the amount of heat emitting from radiator. An investigation of the radiator revealed that it became unbearable to touch within two minutes of turning the shut-off valve to the on position. Plaintiff’s mother, on behalf of her minor son, subsequently filed suit against the landlord contending that the landlord was in control of the apartment’s heating system and failed to protect her son. At the conclusion of discovery, the landlord moved for summary judgment arguing that it did not have notice of the allegedly dangerous condition. The trial court granted defendant’s motion holding that the landlord had no constructive or actual notice of the uncovered radiator and therefore violated no duty to plaintiff. In granting defendant’s motion, the trial court found that the tenants had exclusive control over the radiator’s shut-off valve. The trial court also reasoned that the landlord had not received any complaints of excessively hot radiators, was not aware that a young child was living in plaintiff’s unit, and did not violate any applicable codes. On appeal, the Appellate Division reversed the trial court’s decision and held that the landlord owed a duty of care under a regulation requiring a building’s heating systems (i.e. the radiator) to be covered. The Appellate Division found that the shut-off valve was not sufficient to give the tenants control over the unit’s heating system because there was no control in actual temperature. The Appellate Division found the shut-off valve especially impractical when the tenants were sleeping. The Appellate Division also found that a simple radiator cover would have been enough to protect plaintiff from the burns that he sustained and that the landlord had notice of the dangerous condition because it delivered the unit to the tenants for rent. Thanks to Ken Eng for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News "Employee Exclusion" Gains Further National Support March 7, 2012 < Back Share to: The "Employee Exclusion" found in many CGL policies has been upheld for some time in New York. Originally, it only applied to losses involving an employee of the named (or additional) insured, and over time the language was modified to extend the exclusion to claims involving anyone working on behalf or retained by the insured. This modified language has also been upheld in New York, and recently, an Illinois federal court has recently followed New York courts in interpreting an Employee Exclusion in favor of the insurer. In Nautilus Ins. Co. v. Jona Enterprises, Inc., the insured, Jona, was a general contractor at a job site. Jona retained a subcontractor which in turn hired the injured worker. The policy contained an Employee Exclusion that bars coverage for injuries to the insured’s employee, defined as “any person . . . hired by, loaned to, leased to, contracted for, or volunteering services to the insured, whether or not paid by the insured.” The court followed New York's Appellate Division and ruled that the injured worker was the insured’s employee because he was “contracted for” the insured to work at the job site even though he was not paid by the insured. Thanks to Mendel Simon for his contribution to this post. If you would like more information, please write to mbono@wcmlaw.com . Previous Next Contact

News Expert’s Questionable Report Ultimately Thwarts Summary Judgment (PA) June 9, 2023 < Back Share to: In deciding an appeal from the Court of Common Pleas of Philadelphia County, the Superior Court of Pennsylvania determined that summary judgment in a personal injury action was inappropriately granted in favor of defendant Consolidated Railroad Corporation (Conrail). The trial court’s conclusion that no genuine issue of material fact was created as to causation even though a belated plaintiff’s expert’s report concerning the alleged exposure to asbestos and diesel was deemed error. The plaintiff claimed that his work for the defendant exposed him to asbestos and caused him to develop stage 0 chronic lymphocytic leukemia (CLL). An expert for the plaintiff produced a report that indicated how long the plaintiff was exposed to asbestos and the lack of non-occupational sources of cancer-causing chemicals, such as cigarette smoke. Conrail filed a motion for summary judgment asserting that the expert’s report failed to provide a methodology for reaching the opinion that occupational exposure caused the plaintiff’s injury. The trial court was persuaded that the expert could not reach an opinion as to causation because it found that the report did not indicate the level or manner of exposure. The Superior Court disagreed. Instead, the Superior Court noted that the expert’s opinions were derived from the industrial report of another expert discussing plaintiff’s exposure levels in detail and providing a generally accepted methodology. The appellate court also noted that dose analysis is not required for an expert to opine as to medical causation, and drawing inferenced from published scientific literature is itself a generally accepted methodology of expert opining. However, the methodological sufficiency of the expert’s report was not the only factor recognized in concluding that there was a genuine issue of material fact; the Superior Court of Pennsylvania emphasized the special standard of proof under FELA. Citing Labes v. New Jersey Transit Rail Operations, Inc., 863 A.2d 1195 (Pa. Sup. Ct. 2004), the appellate court explained that under FELA a case should be permitted to reach the jury if the proofs justify the conclusion that employer negligence played even the slightest part in producing the plaintiff’s injury. If it is possible that the employee’s injuries may have resulted from the employer’s negligence, summary judgment is not appropriate. Anderson v. Consolidated Rail Corporation, 2023 WL 2607444 (Pa. Sup. Ct. 2023) shows us just how relaxed the standard for escaping summary judgment is for a plaintiff bringing a personal injury action under FELA. Even when the plaintiff alleges causation using an expert report that is arguably deficient, the plaintiff will have raised a genuine issue of material fact as to causation upon demonstrating the smallest likelihood that the employer contributed in the smallest way to the plaintiff’s injury. Thus, in a motion for summary judgment by a FELA defendant, a plaintiff’s seemingly inexpertly raised issue is likely still genuine. Thanks to Ben Salvatore for his contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Plaintiff Can Pursue Punitive Damages Against Bacardi In Strict Products Liability October 14, 2011 < Back Share to: In [i]Sclafani v Brother Jimmy's BBQ, Inc., [/i]the plaintiff was a patron at the defendant's bar when the bartender, in a pyrotechnic display, poured Bacardi 151 rum onto the surface of the bar and ignited it. The flame spread to the bottle and flames shot out of the mouth of the bottle and burned the plaintiff. She brought a strict products liability action against Bacardi based on a defective design claim. Bacardi moved to dismiss the claim because the bottle included warning labels and a removable flame arrester. The Appellate Division denied the motion, noting that Bacardi failed to submit any evidence substantively contradicting the complaint or the conclusions of the plaintiff's experts. Interestingly, the court noted that Bacardi actively promoted "the very pyrotechnic uses that caused plaintiff's injuries" and declined to dismiss the plaintiff's claim for punitive damages. Thanks to Bill Kirrane for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2011/2011_07184.htm Previous Next Contact

News Better Late Than Never (PA) June 25, 2021 < Back Share to: In Fennell v. Tacu, et al., the United States District Court for the Western District of Pennsylvania examined whether the plaintiff would be allowed to amend his complaint to add additional defendants three days after the statute of limitations had run. Under the facts of the case, the plaintiff, a Pennsylvania state trooper, was injured during a traffic stop when a tractor trailer rolled backward, striking the plaintiff’s vehicle, and causing him injury. The plaintiff filed suit against the driver and his employers on a theory of negligence. The defendants answered and submitted their initial disclosures. Upon review of those disclosures and through plaintiff’s own research, plaintiff determined that the initial defendants lacked enough coverage and assets to cover plaintiff’s injuries, and that the defendants were composed of multiple shell companies that should be treated as one entity. Plaintiff then requested leave to file an amended complaint to include additional entities alleged to be liable under veil piercing theories. However, the theories of negligence and the occurrences alleged remained the same. Defendants objected, noting the statute of limitations had expired. The Court observed that the Federal Rules of Civil Procedure allow for liberal amendment of pleadings, however, where, as here, the statute of limitations had expired, the party must show that the additional parties and claims relate back to the initial pleading. Specifically, the court noted that Fed. R. Civ. P. 15(c)(1)(C), in part, provides that an amendment relates back in this scenario if the plaintiff can establish that the amended pleading relates to the same conduct described in the initial complaint, was served properly under Rule 4(m), the new defendant had notice, and that the new defendant knew or should have known but for mistaken identity, it would have been named in the initial complaint. The Court also noted that the amendment shall not result in unfair prejudice to the non-moving party. Here, the Court found the first prong of Rule 15(c)(1)(C) was met as the claims against the additional defendants arose from the same accident alleged in the initial complaint. As to the second prong, the Court determined that since the added defendants were alleged to be owned and controlled by the same individuals and entities as the initial defendants, notice could be imputed to those entities. Similarly, for the third prong, the Court found that based upon the close relationship of the additional defendants, those parties must have or should have known plaintiff would file suit against them if he had known their identities. Finally, in granting plaintiff’s request, the Court declined to find that amendment would prejudice the defendants, as defendants failed to demonstrate how the amendment would substantially prejudice their defense. Thanks to Benjamin Ferrell for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Let's Go To The Videotape-Plaintiff's Case Dismissed Because Testimony Doesn't Match The Video Camera Tape (NY) November 18, 2022 < Back Share to: In Batista v. Metropolitan Transp. Auth., 2022 NY Slip Op 06419 (1st Dept. 2022), plaintiff sued the MTA alleging that he made a left-hand turn in front of a bus, which collided with his rear bumper. Plaintiff testified that the bus was “halfway down the block when he started to make his left-hand turn.” However, plaintiff’s testimony contradicted the bus driver’s testimony and the video recording which showed the bus driver had the green light and proceeded right when plaintiff’s vehicle made the left turn. An issue of fact arises from these two testimonies. The MTA moved for summary judgment and the trial court denied it. The First Dept. Appellate Division overturned that decision, dismissing the case, finding that there could be no triable issue of fact because the bus driver’s testimony and video recording (which was properly authenticated) showed that plaintiff’s testimony was flat-out wrong. See, Carthen v. Sherman, 169 A.D.3d 416 (1st Dept. 2019). Plaintiff was negligent as a matter of law under VTL 1141, and caused the accident. See, Rohn v Aly, 167 A.D.3d 1054 (2d Dept. 2018); Ciraldo v. County of Westchester, 147 A.D.3d 813 (2d Dept. 2017). Plaintiff’s contention that issues of fact existed due to the bus driver’s comparative negligence was similarly rejected. The bus driver had only seconds to react before impact occurred, and he had a reasonable expectation that plaintiff would follow the rules of the road. There was no clarification by plaintiff as to what the bus driver could have done to avoid impact. Thus, comparative negligence could not be established because plaintiff’s speculative assertions. See, Cardona v Fiorentina, 149A.D.3d 495 (1st Dept 2017). This case is an interesting decision whereas the evidence clearly showed the accident occurred one way, and the appellate court rejected plaintiff’s false testimony and feigned comparative negligence arguments. Usually, issues of fact can be found in almost any traffic accident case because of the he said/she said fact pattern, and judges tend to leave it to a trial jury, and accordingly, appellate courts usually uphold those decisions for the same reason. However, the First Department reached the correct conclusion in here because the MTA’s testimony was patently correct, and plaintiff’s arguments were speculative and without supporting evidence. Thanks to Raymond Gonzalez for his contribution to this article. Should you have any questions, contact Tom Bracken. Previous Next Contact

News Heads Up: Lacrosse Player Injured During Drill (NY) March 2, 2018 < Back Share to: In Tauro v. Gait and Syracuse University, Plaintiff, a varsity womens' lacrosse player at Syracuse University, was struck in the head with a lacrosse ball thrown by her coach , allegedly negligently. Plaintiff was injured during a ground ball drill, and plaintiff said she was unprepared to receive the hard, overhand pass that struck her in the head. Defendants moved to dismiss the complaint on the grounds that a waiver signed by plaintiff established a complete defense to the allegations, and that the complaint failed to state a cause of action because plaintiff assumed the risk of injury. In the waiver, plaintiff agreed that she was “fully aware ... that ... participation [in lacrosse] involves risk of injury ....” She further acknowledged in the waiver that she accepted, and assumed all such risks, whether or not presently foreseeable and whether or not caused by the negligent acts or omissions of others. The trial court denied the summary judgment motion. The Appellate Division, Fourth Department, upheld the lower court’s decision because they ruled the defendant’s actions did not fall within the assumption of the risk doctrine for sports. The court held that defendant’s actions were totally inconsistent with the drill and as such, throwing the ball toward her head was grossly negligent and extremely reckless. The conditions caused by the defendants' negligence were unique and created a dangerous condition over and above the usual dangers that are inherent in the activity. As such, the waiver signed by the plaintiff was not valid due to the gross negligence of the coach’s action. Syracuse University’s Women’s Lacrosse Team is nationally ranked. Gary Gait, the defendant, is still the coach of the team. Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News Tenant Not Responsible For Sidewalk Maintenance In The Absence Of Lease Requirement Or Conduct Creating Liability May 19, 2022 < Back Share to: In Segovia v R.T.H. Assoc. LLC, the Supreme Court of New York, Bronx County, recently addressed the issue of whether a commercial tenant occupying a property adjacent to a public sidewalk had a duty to maintain and repair same. Plaintiff in that case alleged that she fell while walking on the sidewalk adjacent to the property near the property line with an adjacent building. The tenant moved for summary judgment, arguing that it did not have a duty to repair the sidewalk notwithstanding its lease with the property owner. The court granted the motion and dismissed the tenant from the lawsuit, observing that “[I]t is undisputed that R.T.H. and R & G were the owners of the properties that border the sidewalk area in dispute and that Star Bright leased its property from R & G.” The court held that the Administrative Code creates an obligation for the owners but does not impose an obligation on the tenant. The court also ruled that "in the absence of a lease that is so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner's duty to maintain the sidewalk" the lessee will be liable only if it "created the defective condition, negligently made repairs, or used the sidewalk for a special purpose." Since the lease at issue did not displace the landowner’s duty to maintain the sidewalk, the tenant had no duty to maintain the sidewalk. The Segovia decision serves as a reminder that a property owner generally has the duty to maintain an adjacent public sidewalk unless their obligation is “entirely displaced” by specific lease language or the tenant’s conduct creates liability. Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Better Customer Service Does Not Impose a Higher Duty of Care (NY) May 8, 2017 < Back Share to: To succeed in a negligence action, the plaintiff must show that the defendant owed a duty of care to prevent or minimize the risk of harm that allegedly injured plaintiff. Any defendant who does not legally owe plaintiff a duty of care would therefore be entitled to summary judgment. But what happens when the accident allegedly occurs because of defendant’s failure to adhere to its own internal operating guidelines? In Ziman-Scheuer v Golden Touch Transp. of NY, Inc., the elderly plaintiff alleged that she was injured when she fell while exiting a bus operated by defendant. As is common in many industries, Golden Touch maintained a series of internal rules that its drivers were required to follow. One of those rules required drivers to personally assist passengers when exiting the bus if they had difficulty doing so. The driver did not assist plaintiff as she exited the bus, and she argued that by failing to do so he had breached the duty of care owed to her. The First Department reversed the trial court’s denial of defendant’s motion for summary judgment. The court held that defendant had no duty to assist plaintiff as she exited the bus. As a matter of law, internal rules of conduct by a corporation that go beyond the ordinary standard of care cannot serve as the basis for imposing liability. Thus, the bus company’s policy of providing assistance to passengers could not create a duty a legal sense. This decision clarifies that the standard of care cannot be influenced or expanded by creative arguments based upon a company’s operating procedures and policies. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Property Owner and Snow/Ice Contractor Shielded Against Slippery Plaintiff (PA) July 27, 2017 < Back Share to: On July 24, 2017, the Superior Court of Pennsylvania summary judgment in favor of the defendants in Castaldi v. Light Acadia 11-89 et al.. The case arose out of an alleged slip and fall when on January 17, 2012, the plaintiff, Dina Castaldi (“Castaldi”), claimed she fell in the parking lot of a shopping center that was owned by Light Acadia 11-89, LLC (“Light Acadia”). She claimed there was a patch of ice that caused her to fall. Defendant Grass Works Landscape Management, Inc. (“Grass Works”) was retained by Light Acadia to perform snow and ice removal at the parking lot. Both Light Acadia and Grass Works filed for summary judgment on the basis of the hills and ridges and out of possession landlord doctrines. The trial court granted both of their motions. Castaldi then appealed. In Pennsylvania, the hills and ridges doctrine is designed to protect landowners from liability for generally slippery conditions resulting from ice and snow where the owner has not permitted the ice and snow to unreasonably accumulate. Courts recognize that to impose a duty on landowners to keep their walkways free of ice and snow at all times is an impossibility. Therefore, to make a case, a plaintiff must show: 1) that snow and ice accumulated to a degree to unreasonably obstruct travel and to constitute a danger; 2) that the property owner had notice of such condition; and 3) that the accumulation caused their fall and injuries. A plaintiff can also make a case if they show that an accumulation was from an “artificial origin”, i.e. plowing. The court agreed with the defendants and found the Light Acadia had no notice of snow/ice accumulation in the lot and that the accumulation was not large enough to constitute a danger. In addition, the court stated that Grass Works was covered by the hills and ridges doctrine because it was actively treating snow and ice with salt and thus was acting reasonably. The court also found that Light Acadia was not liable because it was an out of possession landlord, and owed no duty to third-parties. As such, Light Acadia was granted summary judgment on this point as well. Courts have recognized owning property as a benefit, on the whole, to society and seek to encourage. As such, several defenses have been established in common law and statute to protect landowners in certain situations. The hills and ridges and out of possession landlord doctrines are two examples of such defenses. It is important therefore to recognize early on the type of ownership that a client has in a property, their interest in the property, how they use it, whether they have leased it out, and other factors to see if they qualify for a certain defense. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact