Wade Clark Mulcahy LLP

News Don't E-mail your (Personal) Lawyer From Work October 29, 2007 < Back Share to: http://www.courts.state.ny.us/reporter/3dseries/2007/2007_27429.htm Dr. Scott recently learned this lesson, as you can see in the attached decision. He sued Beth Israel hospital and later asked for the return of any e-mail he previously sent to his attorney using Beth Israel's system. But a trial-level court in New York held that in an employment action, e-mails between a former employee and his attorney using his former employer's e-mail service were not shielded by attorney-client privilege based on the terms of the employer's e-mail policy. Previous Next Contact

News Sea Change in Classification of Employees vs. Independent Contractors? (CA) October 15, 2019 < Back Share to: On September 19, 2019, California governor Gavin Newsome signed a bill into law essentially reclassifying independent contractors as employees. Whereas the past classification turned on the degree of control an employer exerted on a worker, the new California test looks to whether the work performed is of the same kind as the main business of the employer—i.e., package delivery for a delivery company. We have posted on this issue in the past, as it has pertained to a claim against Uber in Pennsylvania. In New York, Governor Cuomo spoke approvingly about passing a similar piece of legislation. A bill to reclassify independent contractors was introduced in the New York State Senate earlier this June, and a coalition including the New York Taxi Workers Alliance, the New York Nail Salon Workers Association, the Legal Aid Society, and 32BJ SEIU is currently pushing for legislation Gov. Newsome just signed in California. These statutory reclassifications of independent contractors are on paper limited to traditional employee benefits, such as overtime and minimum wage protections, workers compensation and unemployment insurance, and do not extend to tort claims, thus leaving in place the control-based test for determining whether a worker is an employee and an employer is in turn vicariously liable. In New York, the test for determining a worker’s classification for purposes of worker’s compensation is similar to that applied in a tort action: both turn on control exerted upon the worker by the employer. Although similar, the tests are not identical, and it can happen that the same worker may simultaneously be an employee for purposes of workers compensation and an independent contractor in a tort action. This apparent conflict is actually a peaceable one, and New York Courts have routinely held that a finding of “employee” for workers compensation purposes does not disturb a finding of “independent contractor” in a tort action. As a practical matter, employers might be less willing to grant a worker the same flexibility enjoyed by a contractor in matters like setting his own hours if the employer were on the hook for the various costs associated with a traditional employee. That increased control over the worker could have the result of triggering employee status within the tort law realm. This new reclassification something to keep an eye on, within and without New York State. Thanks to Jon O'Brien for his contribution to this post. Please email Brian Gibbons with any questions.     Previous Next Contact

News NJ Appellate Court Reinstates $1 Million Award for Herniations December 16, 2009 < Back Share to: Plaintiff Ming Yu He was involved in an auto accident, and filed suit against the owner and operator of the other car in He v. Miller. An MRI of plaintiff revealed four herniated or ruptured discs, which caused ongoing pain. Plaintiff underwent the typical battery of physical therapy, including acupuncture. No surgery was performed, although epidural injections were administered. Plaintiff’s physician testified she had “chronic and permanent pain” five years after the accident. Plaintiff testified she was unable to perform typical household duties and the like. The defendants’ IME physician opined much of plaintiff’s condition was likely degenerative and preexisting. But a Morris County jury returned an award that included $1 million for pain and suffering. The trial judge found the award was “shocking to the conscience,” but did not mention similar verdicts in granting remittitur. The Supreme Court ultimately reversed and remanded to have the trial court explain how the award differed from other comparable awards. The trial court subsequently cited to two decisions relating to cases over which he presided, but those cases involved different injuries than those suffered by plaintiff He. The Appellate Division found that the trial court’s discussion of comparable verdicts was insufficient and that they only provided “superficial support” for the remittitur. The appellate court also expressly rejected the judge’s “feel of the case,” emphasizing that the trial judge is not a “thirteenth and decisive juror.” Notably, the appellate court also stated that the judge was correct in finding the likely range of verdicts for similar injuries was between $40,000 and $200,000, but that in order to set aside the verdict it must be “adequately articulated” that permitting the award to stand would constitute a manifest miscarriage of justice. The verdict was reinstated. http://pdfserver.amlaw.com/nj/He-a5685-07-remanded.pdf 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

News Watch Where You Step: 2nd Department Affirms Sole Proximate Cause Defense (NY) September 22, 2017 < Back Share to: New York Labor Law §§ 240(1), 241(6) are notoriously plaintiff-friendly, and liability defenses are often limited at trial. Defenses usually center on the sole proximate cause argument, which is often difficult to prove. However, in Melendez v 778 Park Ave. Bldg. Corp., 2017 Slip Op 06175, the Second Department affirmed the dismissal based on the sole proximate cause defense as well as other causation based arguments. Plaintiff and coworkers were erecting a scaffold in the yard area of the defendant's building to make a platform even with the sidewalk. Plaintiff was building the platform portion of the scaffold by placing wooden planks on top of steel I-beams when he stepped onto an unsecured wooden plank, causing him to fall. Plaintiff alleged violations of Labor Law §§ 240(1), 241(6), and 200, and common-law negligence against the owner and general contractor. The Supreme Court granted the portions of defendants’ motion to dismiss the Labor Law §§ 240(1), 241(6) cause of action. The plaintiff appealed. The Appellate Division affirmed the Supreme Court’s judgment. The Court opined that in order to succeed on a cause of action alleged violation of Labor Law § 240(1), a plaintiff must demonstrate that there was a violation of the statute and that violation was a proximate cause of the accident. In this case, the plaintiff was found to be sole proximate cause as he chose to step upon an unsecured plank that he had just seconds before placed on a narrow steel beam rather than standing upon the secured planking that was available to him and which he had used in the time leading up to the accident. The Appellate Division affirmed the dismissal of the Labor Law § 241(6) cause of action because the alleged violations of the Industrial Code provisions were not a proximate cause of the plaintiff's injuries, or conversely, did not apply to the facts of this case. The Court also affirmed the dismissals of the Labor Law § 200 and common-law negligence actions as against the general contractor, determining that the plaintiff's injuries did not arise from a dangerous condition on the premises, but from the manner in which the work was being performed. On that basis, a defendant must have the authority to exercise supervision and control over the work to be liable. Here, the defendant did not have the authority to control, direct or supervise the method or manner in which the work was performed. The sole proximate cause defense is case specific and often difficult to prove. However, this case provides an example of the Appellate Division rendering a decision, taking the events leading up to the accident into fair account. The Court’s common sense analysis resulted in a properly affirmed dismissal. Thanks to Justin Pomerantz for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Scooter Lessor Off the Hook for Incident at County Fair in NY January 23, 2013 < Back Share to: In Couture v. Miskovitz, the plaintiff complained that she was struck by a motorized scooter operated by defendant Miskovitz. Miskovitz had rented the scooter from defendant Stillwater Ramps and Mobility Center and was operating the scooter at the county fair at the time of the accident. Defendant Dutchess County Agricultural Society owned the premises. The lower court denied Stillwater's and Dutchess County's motions for summary judgment. In reversing the lower court's decision, the Second Department held that Stillwater was entitled to summary judgment because it was not vicariously liable for Miskovitz' actions pursuant to Vehicle and Traffic Law 388. Specifically, the fact that the scooter was not operated on a public highway relieved Stillwater from vicarious liability. Moreover, Stillwater demonstrated that it was not negligent in maintaining the scooter, entrusting the scooter to Miskovitz or in training him how to use it. The Court also held that Dutchess County was entitled to summary judgment because it did not have the ability or opportunity, through the exercise of reasonable measures, to control Miskovitz's actions. Thanks to Georgia Stagias for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Art Gallery’s Covid-Related Losses Are Not Covered By Insurance Policy January 7, 2022 < Back Share to: In 10012 Holdings, Inc., d/b/a Guy Hepner v. Sentinel Insurance Company, LTD., the United States Court of Appeals for the Second Circuit affirmed the District Court’s decision to dismiss plaintiff’s claim for failure to state a proper basis for relief. Guy Hepner, a New York City-based fine arts gallery displaying the works of Andy Warhol, Pablo Picasso, and many others, filed suit against its insurer Sentinel for breach of contract after Sentinel denied coverage under its policy for financial losses suffered by Guy Hepner as a result of government mandated Covid-19 restrictions. At various times during the current Covid-19 epidemic, New York has suspended the operations of non-essential businesses in an attempt to quell the spread of the Covid-19 virus. Guy Hepner argued that the financial losses it suffered due to closing its doors should be covered under various provisions dealing with property damage. These sections generally provide coverage where the insured’s business is unable to operate due to property damage, and as a result, the insured suffers financial losses. However, the United States District Court for the Second Circuit ruled in favor of Sentinel, stating that because Guy Hepner “alleges only that it lost access to its property as a result of COVID-19 and the governmental shutdown orders, and not that it suspended operations because of physical damages to its property”, Guy Hepner’s losses were not covered by the policy. This ruling is one of many examples in which the courts have refused to interpret insurance policy sections dealing with businesses losses caused by property damage as also encompassing business losses caused by government shutdown initiatives. Thanks to Brian Zappala for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News School District Fails to Slip Away from Liability for Plaintiff's Fall (NY) November 27, 2019 < Back Share to: In Williams v. Island Trees Union Free Sch. Dist., a New York court addresses the level of evidence required for a defendant to claim it lacked constructive notice of a dangerous condition. In Williams, the plaintiff allegedly slipped and fell on clear liquid in the south cafeteria of Island Trees High School, which was under the control of the Island Trees Union Free School District. According to plaintiff, the accident occurred when she was walking in the cafeteria toward an "Aquafina" vending machine and both of her feet slipped out from underneath her. She then fell to the ground where she noticed a puddle of water which was approximately two inches wide and three to four feet long trailing from her spot on the ground to the vending machine. Plaintiff commenced an action to recover damages for personal injuries against the School District and Dover Gourmet Corp., the company with which the School District allegedly contracted with to stock the vending machine. Plaintiff alleged the School District was negligent in, among other things, maintaining the premises. The School District subsequently moved for summary judgment dismissing the complaint asserted against it. The New York Supreme Court granted the School District's motion. In response, plaintiff appealed. The New York Appellate Division, Second Department determined that the School District had failed to demonstrate, on a prima facie level, that it did not have constructive notice of the alleged water condition that caused plaintiff to fall. The court reiterated that "to meet its initial burden on the issue of lack of constructive notice, the defendant must offer evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell." In this case, the Court found that the School District failed to provide evidence regarding any specific cleaning or inspection of the area in question relative to the time when plaintiff's accident occurred. Accordingly, the Court reversed the lower court’s order. This decision serves as an important reminder that it is crucial for a moving party to adequately demonstrate that it lacked constructive notice of a condition that allegedly caused a plaintiff's accident when making a motion for summary judgment. Thank you to Caitlin Larke for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News GEICO Challenges Deemer Statute in New Jersey December 14, 2018 < Back Share to: Geico has challenged a New Jersey State Statute requiring auto policies issued out of state to provide a minimum amount of bodily injury liability coverage when the insured drivers are involved in accidents in New Jersey. The case is Guerline v. Brian v. Richards, case number 081799, in the New Jersey Supreme Court. As of December 7, 2018, the New Jersey Supreme Court justices had granted Geico’s petition for certification of a state Appellate Division panel’s August ruling directing the insurer to provide a minimum of $15,000 in bodily injury liability coverage for claims against its Florida-based policyholder who was involved in a motor vehicle accident in Newark, NJ in 2013. Even though the Florida-based policyholder’s auto policy did not include any bodily injury coverage, the appellate panel found that, under a decades old New Jersey law dubbed the “Deemer statute,” Geico was still required to supply the minimum amounts of such coverage included in a standard auto policy issued in the Garden State ($15,000 per person or $30,000 for more than one person per accident). The Supreme Court justices will decide the following question: Does the Deemer statute apply to an automobile insurance policy written in Florida for a Florida resident who had an accident in New Jersey, where the Florida policy did not include any bodily injury liability coverage? The Supreme Court of New Jersey’s decision will have a major impact on motor vehicle litigation in New Jersey. Thanks to Jon Avolio for his contribution to this post. Please email Brian Gibbons with any questions.         Previous Next Contact

News Insured Contract Exclusion Requires A Third-Party October 28, 2022 < Back Share to: In Stevanna Towing, Inc., et al. v. Atlantic Specialty Ins. Co., No. 21-1420, 2022 WL 12241451 (3d Cir. Oct. 21, 2022), a Stevanna employee was injured when the boat he was deckhand on— which was being piloted by an employee of Georgetown Sand & Gravel—bumped into a barge. Stevanna, among others, resolved the suit with the employee and then sought reimbursement for the costs associated with its defense and settlement. Atlantic Specialty Insurance Company (“Atlantic”) denied coverage. Among the many issues was whether the insured contract exception to the employer-liability exclusion applied to provide coverage to certain additional parties. The Atlantic policy’s definition of insured contract included “that part of any other contract or agreement pertaining to [Stevanna’s] business . . . under which [Stevanna] assume[d] the tort liability of another party to pay for ‘bodily injury’ . . . to a third person or organization.” The court stated that for the exception to apply, Stevanna needed to have assumed the tort liability for injuries caused by another party; however, the indemnification agreement in question was for liability for injuries “caused in whole or in part by the negligence of Stevanna, its agents and employees.” Hence, as the “insured contract” did not expressly purport to assume the tort liability of another party, the court held the exception for insured contracts did not apply. Also noteworthy was the Third Circuit’s refusal to entertain the argument that Atlantic waived the implementation of the employer-liability exclusion by not referencing it in its denial letter nor in its answer to the complaint. The court stated “those omissions do not amount to an implied waiver under Pennsylvania law.” Thanks to Richard Dunne for his contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact