News Playgrounds Are Still Allowed to Pose Some Risk, In Theory Anyway (NY) August 22, 2019 < Back Share to: Most people older than a millennial remember the "good old days" when playgrounds resembled death traps, complete with metal slides that burned your skin, monkey bars the height of a small building, and swings that seemingly reached the sky. In a post-Stranger Things world, however, playgrounds are now constructed to comply with more stringent safety regulations, and to avoid even the slightest prospect of danger. But as one Second Department decision makes clear, all the fun-proofing in the world will not stop the lawsuits. In V.W. v. Middle Country Central School Dist., a school was sued by the parent of a girl who hurt herself falling off a set of monkey bars. According to the plaintiff, the school district should be held liable because it negligently supervised the girl and negligently maintained its premises. In the trial court, the school district was awarded granted summary judgment. However, the Second Department reversed. On appeal, the school district actually prevailed on the negligent supervision claim. According to the Second Department, the school district provided adequate supervision. The Court even held that falling off monkey bars is an incident which could not be prevented with closer monitoring. However, the Second Department reversed the decision on the negligent maintenance claim. Although the school district offered expert testimony showing the playground complied with applicable regulations, the expert also confirmed that the monkey bars had been removed by the time she inspected and she had also been unable to confirm surface conditions on the day of the accident. The Court’s decision in V.W. is significant because it does provide playground owners and operators some comfort that it is possible to avoid liability for risks that used to be a given. But it also shows that they must show constant vigilance in maintaining the ground and preserving the evidence. Here, the expert was rendered unable to inspect the monkey bars, because they had been discarded. Hence, an issue of fact to deny summary judgment. Thanks to Mike Gauvin for his contribution to this post. Please email Brian Gibbons with any question.   Previous Next Contact

News PA Common Pleas -- Property Owner Is Not Responsible For Poor Drainage. January 4, 2008 < Back Share to: In the case of Gayhardt-Stang v. Dept. of Transportation, PICS Case No. 07-2110 (C.P. Lehigh Nov. 5, 2007), the Court ruled that a property owner is not responsible for poor drainage conditions on an adjacent highway. http://www.palawweekly.com/plw/printarticle.aspx?ID=24778 Previous Next Contact

News Labor Law And The "Construction Area" November 9, 2010 < Back Share to: In Pirog v. 5433 Preston Ct., LLC, Pirog injured his hand while he and his co-workers were stacking pipes on the defendant’s property. Pirog's employer used the defendant’s property to store construction materials for use on various construction projects throughout the City. Pirog commenced suit asserting that the defendant violated Labor Law sections 200, 240(1) and 241(6). The defendant moved for summary judgment, but its motion was denied. On appeal the Second Department reversed the lower court's decision and granted the defendant summary judgment holding that, at the time of his accident, the plaintiff was not engaged in construction work and was not working in a construction area within the meaning of the Labor Law. Thanks to Ed Lomena for his contribution ot this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07912.htm Previous Next Contact

News Court Dismisses Defamation Suit Stemming From Negative Google Review (NY) October 27, 2022 < Back Share to: This past week, in DeRicco v Maidman, the First Department of the Appellate Division of the Supreme Court of New York reversed a trial court decision that denied a defendant patient’s motion to dismiss an orthodontist’s defamation claims against them. The claims were brought by the orthodontist and his professional corporation against the patient and his parents after the parents posted an unfavorable (but anonymous) Google review. The First Department held that the review, which asserted that the orthodontist charged hidden fees, was not open during his stated business hours, and “did a horrible job” on the patient’s braces rendering the patient’s teeth “crooked and misplaced”, contained elements of both fact and opinion but was not actionable under New York law. Generally, NY courts presented with defamation suits must consider the “circumstances and [ ] the broader social context (i.e., the factual background)” to evaluate whether the message would be taken literally or figuratively by the ordinary person. Steinhilber v. Alphonse, 501 N.E.2d 550, 555 (N.Y. 1986). Here, the First Department considered the review in its overall context; for more than a decade, New York courts have noted that readers “give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts.” With this in mind, the court held that the review of the orthodontist posted by the patient’s parents would be understood by a reasonable reader to be “pure opinion” based on its anonymity and its “arguably loose, figurative, or hyperbolic tone.” Thus, the First Department ordered the trial court to dismiss the orthodontist’s complaint against the patient and his parents. Thanks to Jason Laicha for his contribution to this post. Please email Brian Gibbons with any questions about defamation claims and the defenses thereto. Previous Next Contact

News School Properly Responded To Threat Against Student (NY) June 7, 2013 < Back Share to: Schools have a duty to adequately supervise students, but are not insurers of student safety. A school will only be held liable for injuries intentionally inflicted by another student where it is established that the dangerous conduct could have been reasonably anticipated. Following this rationale, in Conklin v. Saugerties Central School the Third Department dismissed a claim for negligent supervision. There, plaintiff’s father discovered comments on his daughters MySpace account indicating that another student, Edwards, intended to fight her. The next day, the school’s social worker met with the girls, and both denied any intention to engage in a physical altercation. School officials also met Edwards to discuss the disciplinary implications of fighting. Edwards told the school she had no intention of fighting and had made no threats to do so. Later, Edwards pulled plaintiff to the ground by her hair and repeatedly punched her in the head. Notwithstanding the prior notice of the attack, the Appellate Division found that the school reasonably responded to the rumor of a threat, determined it was unfounded and could not have anticipated the assault. The court also noted that Edwards's disciplinary file showed no history of fighting or violence. Finally, the court found that the MySpace post was merely a rumor rather than a direct threat. Accordingly, the school was awarded summary judgment. When a school receives notice of a potential threat, the Appellate Division will carefully scrutinize all efforts made to address and prevent the assault. If a school has taken reasonable steps to address the claim, the school may avoid liability. Thanks to Bill Kirrane for his contribution to this post. If you have any questions about this post please email Paul Clark at pclark@wcmlaw.com .   Previous Next Contact

News Eight (Years) is Enough -- Plaintiff's Delinquent Discovery Finally Prompts Dismissal (NY) January 8, 2019 < Back Share to: As every litigator is well aware, particularly in New York, the wheels of justice tends to turn slowly. This concept was never more apparent than in the case of Harris v. Kay. This 2019 First Department decision has a 2006 index number. Plaintiff appealed from a 2017 order granting defendant’s motion to strike the complaint. The Appellate Division found the trial court did not abuse its discretion in striking the complaint given plaintiff’s repeated, willful and contumacious refusals to provide discovery and comply with court orders over EIGHT years. This decision goes to show the level of leniency courts grant plaintiffs before entertaining the sanction of dismissal. Plaintiff’s response to defendants’ first set of interrogatories were served SIX years after the initial demands were made and the response failed to show a good-faith effort to address the requests meaningfully. It is a point of great frustration for defendants when plaintiff’s initiate lawsuits and then fail to prosecute and it takes years of good faith letters and motion practice, only to get an inadequate response. While this decision gives plaintiffs significant leeway, it is heartening to know there are limits to a court’s generosity. Let’s hope more judges make the resolution to keep more stringent discovery schedules! The salient point for defendants is simple -- when plaintiffs fail to adhere to discovery orders, document those failures by publishing letters to the plaintiff. The more failures documented, the more persuasive the eventual dismissal motion will be. Thanks to Mehreen Hayat for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Allstate Blocked From Writing New Policies In Florida January 16, 2008 < Back Share to: The Florida Insurance Commissioner has blocked Allstate from writing new policies in that state until Allstate complies with subpoenas issued by the Florida Office of Insurance Regulation. The Subpoenas seek documents regarding Allstate’s reinsurance program, it’s relationship with risk modeling companies, insurance rating organizations and insurance trade associations. http://www.insurancejournal.com/news/southeast/2008/01/16/86463.htm Previous Next Contact

News Defendant Fails to Raise Sufficient Grounds to Vacate Arbitral Award April 19, 2024 < Back Share to: In Jesan Construction Group, LLC v. 3125-3129 Summit Avenue, the Appellate Court upheld an arbitrator’s interpretation of a New Jersey law and the accompanying $433,690 judgment against Defendant. Plaintiff Jesan Construction Group was hired by Defendant 3125-3129 Summit Avenue to perform concrete and masonry work on the Summit Avenue property in Union City. Plaintiff was on schedule from September 2015 through January 2016, at which point they asked for partial payment and Defendant declined. In August 2020, the parties entered into an agreement to arbitrate. The parties exchanged written discovery and the arbitrator concluded that the Defendant never paid Plaintiff for their services because one of the checks issued was never cleared. Under New Jersey case law, an "arbitrator's factual determinations concerning the merits of the dispute submitted to him are not reviewable by the court." Ukranian Nat'l Urb. Renewal Corp. v. Joseph L. Muscarelle, Inc. , 151 N.J. Super. 386, 396 (App. Div. 1977). Appellate Courts may review arbitration decisions under the plain error standard, and may overturn arbitration awards if “the award was procured by corruption, fraud, or other undue means." N.J.S.A. 2A:23B-23(a). Defendant argued that the arbitrator erred as a matter of both fact and law because 1) the parties were not in privity of contract; 2) liability was not determined under New Jersey law; 3) the arbitrator impermissibly relied on a mediation letter in making their decision, and 4, the arbitrator did not articulate a cause of action upon which the award was granted. However, the Court was not swayed by any of these arguments. First, Defendant admitted in the initial Answer that there was a signed contract between the parties, thereby admitting privity. The Court dismissed both the liability argument and the cause of action argument and found that the arbitrator sufficiently explained their findings. Lastly, the Court dismissed the mediation letter argument because this was not addressed with the trial judge previously. This case serves as a reminder to consult legal counsel prior to signing a binding arbitration agreement. Arbitrators have broad power in New Jersey and their decisions are typically binding and will only be vacated on very limited grounds. Jesan Construction Group, LLC v. 3125-3129 Summit Avenue, LLC .pdf Download PDF • 70KB Previous Next Contact

News New Jersey Tolerates Mulligans December 4, 2013 < Back Share to: Here, in America, among friends, mulligans are part of the game. In fact, President Clinton refused to count "do-overs" when calculating his score. In Scotland, by contrast, a mulligan off the tee, even among friends, is known as "Hitting Three." In Schick v. Ferlito, the New Jersey Supreme Court ruled that taking a mulligan when another golfer was in the "line of fire" (and failing to yell fore) constituted "reckless" conduct, and thus liability attached. In other words, in the context of recreational sports, to constitute a tort, conduct must exceed the level of ordinary negligence. A recent New Jersey decision, Corino v. Duffy, et. al., seemingly endorsed the free grant of mulligans among playing partners. Corino suffered a serious eye injury after being struck by a mulligan sliced off the tee box adjoining the fairway on which Corino was playing. According to Corino, he carefully watched the threesome on the adjoining tee hit their drives. Unaware that Duffy's playing partners allowed Duffy to take a mulligan, Corino took dead aim on his iron shot to the green, only to be struck by Duffy's mulligan. In light of Schick, Duffy sued the threesome claiming that all three engaged in reckless conduct by allowing a mulligan in the first instance, and then failing to yell fore as Duffy's shot sliced toward Corino. As the matter unfolded, Duffy's playing partners turned against him, claiming that Duffy struck the mulligan that injured plaintiff, and that they had no duty to yell fore. The trial court agreed. Reading the Rules of Golf strictly, the court ruled that only the "player" who strikes the errant shot has the duty to yell fore. Beyond that, the court suggested that only a jury could make a determination of whether Duffy's failure to yell fore constituted reckless conduct. Presumably, the court felt that, unlike Schick, Corino was not directly in the "line of fire," and thus presented a much closer question of fact. While it's true that the Rules of Golf impose upon the player the duty to yell fore when an errant shot is struck, the rules also mandate that the ball must be played as it lies. If Duffy had followed the rules, Corino would have played on without injury. And that is the irony of New Jersey's golf jurisprudence.   Previous Next Contact

News A Wall Is Really A Window: "Routine Maintenance" Re-Visited September 3, 2009 < Back Share to: Labor Law § 240(1), also known as the Scaffold Law, places absolute liability on owners and general contractors to provide a safe work environment to prevent accidents that flow from the risk of performing work from elevated heights. Section 240(1) specifically enumerates activities under its protection, which includes commercial window washing, but not routine cleaning. But the courts have long struggled with the concept of what constitutes “routine maintenance.” In Declercq v. WWP Off., LLC, plaintiff was washing the walls and window ledges inside a subway station. The job entailed using a ladder to apply a cleanser, letting it soak, then again using a ladder to hose down the area. The plaintiff was hosing down the area when the ladder kicked out from underneath him, causing him to fall 20 feet and sustain injuries. The plaintiff argued that because cleaning is specifically enumerated as a protected activity under Labor Law § 240(1), and he was not provided any safety device to prevent him from falling, the defendant building owner is liable under § 240(1). The defendant argued that they are not liable under § 240(1) because the plaintiff was involved in routine cleaning. The cleaning was routine because the plaintiff was cleaning the walls and window ledges, and not the windows. The court disagreed and held that the plaintiff was not performing routine cleaning because he was not cleaning residential or household buildings. And, cleaning under § 240(1) is not limited to cleaning windows. Section 240(1) protects workers while cleaning when it involves an elevated height without the proper safety equipment, which the court found is exactly what happened in this case. Declercq makes plain that where the worker requires a ladder (or works from a height), the marked judicial trend is to find 240(1) applicable even if the task is as mundane as washing walls. Thanks to Anne Mulcahy for her contribution to this post. For more information, please email Dennis Wade at dwade@wcmlaw.com . Previous Next Contact

News Gym Exercises Contractual Right Under Waiver of Liability Term (PA) November 23, 2016 < Back Share to: In Toro v. L A Fitness, the plaintiff found out the hard way that in Pennsylvania a signed waiver clause actually means something. The claim arose out of a slip and fall due to soapy water on the floor of the gym’s locker room. LA fitness filed a motion for summary judgement on the basis of a broadly worded waiver of liability in the membership agreement the plaintiff signed. Significantly, above the signature line the agreement stated, “By signing this Agreement, Buyer acknowledges that Buyer is of legal age, has received a filled-in and completed copy of this Agreement[,] has read and understands the entire agreement including but not limited to the . . . Release and Waiver of Liability and Indemnity, and other Additional Terms and Conditions on the reverse side hereof.” The plaintiff put forward a myriad of arguments why the waiver should not apply: the agreement amounted to a contract of adhesion; the waiver was against public policy; and the waiver language was not conspicuous. Although his signature was on the agreement, he could not recall if he actually read it prior to signing. The Pennsylvania Superior Court was not persuaded. The Court agreed that for a waiver to be valid “the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.” Turning to plaintiff’s adhesion argument, the Court stated that “[a]n adhesion contract is a ‘standard-form contract prepared by one party, to be signed by the party in a weaker position, usu[ally] a consumer, who adheres to the contract with little choice about the terms.” However, the Court found that a waiver involving the “use of a commercial facility for voluntary athletic or recreational activities is not considered a contract of adhesion because ‘[t]he signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services.’” Thus, if Toro did not like the LA Fitness’ terms he was not compelled to sign on the dotted line. In regards to Toro’s public policy argument, the Court noted that Waiver Clauses “violate public policy only when they involve a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” The Superior Court further ruled that an agreement between private individuals or entities that do not address matters of interest to the public or state cannot be said to violate public policy. Lastly, the Court was not swayed by the plaintiff’s memory lapse as to reading the contract before signing. The Court concluded that a “[f]ailure to read an agreement before signing it does not render the agreement either invalid or unenforceable.” Moreover, above Toro’s signature was language that stated that by signing he agreed that he read it. WAIVER ENFORCED. Thanks to Marcus Washington for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Notice of Claim Pitfall: New York Appellate Court Confirms That Original Deficiencies Cannot Be Corrected With §50-h Hearing Testimony September 6, 2024 < Back Share to: To maintain the right to file a tort lawsuit against a municipality or public corporation in New York, a claimant must serve a Notice of Claim within 90 days of the date of the loss pursuant to General Municipal Law §50-e. The notice must contain certain information to allow the municipality to properly investigate and assess the claim, and the failure to timely provide such information can be fatal to a subsequent lawsuit. The Second Department recently addressed these issues in Behrens v. Town of Huntington . In that case, plaintiffs alleged that they sustained injuries while slipping on a gangway leading to floating docks. Both plaintiffs served separate but similar notices of claim near the end of the 90-day period, with the notices describing the incidents but lacking detail about the location and cause. Four months after serving the notices, the plaintiffs testified at a §50-h hearing and subsequently filed a personal injury action, claiming their falls were due to defects or substances on the gangway. The Town moved to dismiss the claims, arguing that the notices failed to provide the specific information required under GML §50-e(2). The Supreme Court agreed and granted defendants motion, dismissing the lawsuit with prejudice. The Second Department affirmed, holding that plaintiffs’ initial 90-day notices were not only inadequate but that a court cannot use a General Municipal Law §50-h hearing to amend or supplement the initial claim. The Court observed that a Notice of Claim is designed to allow municipalities to investigate and assess the claims and must include: i) the nature of the claim, ii) the time, iii) the place, and iv) the manner in which the claim arose. For effective notice, the municipality must be able to "locate the place, fix the time, and understand the nature of the accident," particularly for roadways and walkways due to their “transitory nature.” The Court also observed that when considering a motion to dismiss as to a Notice of Claim, courts may review not only the notice itself but also any additional evidence presented. However, the additional evidence cannot be used to alter the fundamental nature of the claim or introduce new allegations. The Court concurred with the lower court’s decision that the original Notices of Claim did not adequately describe the location and cause of the incidents and the §50-h hearing testimony could not rectify these deficiencies. The Behrens decision highlights the importance of evaluating the sufficiency of information provided in Notices of Claim served under the General Municipal Law and confirms that deficiencies cannot be cured with subsequent testimony in a §50-h hearing. Municipal defendants should move to dismiss a complaint where the information provided was not sufficient as a matter of law. Behrens v. Town of Huntington .pdf Download PDF • 234KB Previous Next Contact