News Buckle Up! New York Now Requires All Passengers 16 and Up To Wear Seat Belts October 22, 2020 < Back Share to: NEW YORK’S NEW SEAT-BELT LAW REQUIRING ALL OCCUPANTS INSIDE A MOTOR-VEHICLE TO BUCKLE UP TAKES EFFECT ON NOVEMBER 1, 2020 https://nypost.com/2020/08/11/new-york-will-now-require-seat-belts-for-all-car-occupants/ On November 1, 2020, New York will become the 30th state to require all occupants inside a vehicle over the age of sixteen to wear seatbelts. The new law will now make it mandatory for back-seat passengers to wear a seat belt along with the front occupants. Presently, the law only required front seat occupants. Buses and emergency vehicles are exempt from the new law, but not taxis. This law comes after studies conducted by the National Highway Traffic Safety Administration found that you are less likely to suffer serious injuries or death if you wear a seat belt. In 1984, New York was the very first state to enact a seat-belt requirement in the United States and legislation has always promoted New York citizens to wear seatbelts. Time will tell how the new law will impact the way in which plaintiff’s damages are assessed and allocated. Currently, in New York, a defendant in an auto negligence case may raise a “seat-belt defense.” This defense affords a defendant the opportunity to prove through expert testimony that the plaintiff’s injuries wouldn’t have been as severe, as claimed, if plaintiff was wearing a seatbelt at the time of the accident, regardless of where the plaintiff was positioned inside the vehicle. The party claiming injury has a duty to mitigate damages, meaning they must show that they acted reasonably to limit the amount of harm. This duty essentially limits the amount of damages a defendant potentially must pay to the injured party. Typically, the duty to mitigate only applied to actions the injured party takes after an accident. Now that the new law requires all occupants to wear seatbelts, the duty to mitigate damages applies to the actions of everyone over the age of 16 inside a vehicle prior to the occurrence of an accident. Thanks to Irving Fayman for his contribution to this post. If you have any questions or comments, please contact Thomas Bracken. Previous Next Contact

News Speculative Evidence Is Not Sufficient In A New York Slip And Fall Case (NY) December 3, 2021 < Back Share to: To prevail on a summary judgment motion in a slip and fall action, a defendant has the initial burden of showing that it (a) did not create the hazardous condition and (b) did not have actual or constructive notice of its existence. In order to prove lack of constructive notice, a defendant must proffer evidence as to when the site was last cleaned or inspected prior to the accident. Conversely, a plaintiff may prove constructive notice by establishing that the alleged defect was visible, apparent, and existed for a sufficient length of time prior to the accident so that the defendant had time to discover and remedy it. However, a plaintiff’s claim will fail if their proofs are speculative, and they cannot satisfy the burden of proof with sufficient evidence. These issues were addressed in the recent Bronx County decision of Torres v. Sanitation Salvage Corp., 73 Misc. 3d 1214(A), 154 N.Y.S.3d 218 (N.Y. Sup. Ct. 2021). Plaintiff in that case was allegedly injured when she slipped on fruit and vegetable residue on a ramp at the Hunts Point Terminal Market. The market was owned by the City of New York and leased to Hunts Point, which then leased individual units to various produce vendors, including plaintiff’s employer. Hunts Point moved for summary judgment, asserting that it hired a sanitation service to clean the exterior areas of the market and that the area where plaintiff fell was cleaned just an hour prior to the accident. In her opposition, plaintiff argued that because her clothes were wet after the fall, a condition must have existed on the ramp that caused her to fall. However, the court determined that such evidence was insufficient to defeat the motion because there were no prior complaints made to Hunts Point and plaintiff testified at deposition that she never observed any residue in the area where she fell. Because plaintiff relied on “mere speculation” as to the cause of the fall and failed to show that the condition existed for a sufficient period of time prior to her accident, the court granted the motion and dismissed the claims against Hunts Point. The takeaway from Torres is that a New York slip and fall plaintiff cannot rely on mere speculation to sustain their burden of proof and must have concrete evidence to establish the element of constructive notice. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Residential Exception to Sidewalk Law Tested March 26, 2009 < Back Share to: Section 7-210 of the Administrative Code of the City of New York (the New Sidewalk Law), states that the owner of real property is liable for any injury to property or personal injury that is caused by the failure of the owner to maintain the sidewalk in a reasonably safe condition. This section contains an exemption for one, two, or three-family residential real property that is (1) in whole or part, owner occupied, and (2) used exclusively for residential purposes. In Story v. The City of New York, this exemption's scope was tested. Plaintiff Wilma Story allegedly was injured as a result of a trip and fall accident in front of a building in Brooklyn. This property was owned by Morris and Judith Lowinger and had been used as their place of residence as sole occupants for the past 40 years. The property, however, had a sign on it for their son's law practice and Equinox Company. The Lowingers moved for summary judgment in the action asserting the exemption to Section 7-210. In deposition testimony, undisputed by the plaintiff or co-defendants, the son stated that he used his parent's address simply as a mail drop and official listing and conducted no business there. The Supreme Court, Kings County, finding for the Lowingers, held that the purpose of the New Sidewalk Law would be subverted if the exemption did not apply to the defendants because there was no business use other than a mail listing and a sign. Thanks to Michael Monteith for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29112.htm Previous Next Contact

News Out Of Possession Landlord Not Liable For Injuries On Its Premises August 8, 2011 < Back Share to: Absent a contractual obligation to make repairs or a retention of control over the property, an out-of-possession landlord cannot be held liable for personal injuries sustained on its premises. The Second Department reiterated this principle when affirming the trial court's decision in Sciammarella v. Manorville Postal Associates, where the plaintiff, a U.S. Postal Service employee sustained personal injuries. Sciammarella fell after stepping into a hole on premises leased by the U.S. Postal Service. Defendant moved for summary judgment and established its prima facie entitlement to summary judgment on the basis that it was an out-of-possession landowner with no control or contractual obligation to maintain the premises. Thanks to Alison Weintraub for her contribution to this post. Previous Next Contact

News Defendant Accused Of Assault with Firearm Entitled To Coverage Under Homeowner’s Policy (NY) January 12, 2017 < Back Share to: In the world of insurance coverage, it’s well known that the duty to defend is broader than the duty to indemnify. Just how broad is the subject of many lawsuits, but a Third Department decision handed down today is an excellent example of how common perceptions are stretched to find coverage under an insurance policy. In Guzy v. New York Central Mutual Fire Insurance Company, an insured sought coverage under his homeowner’s policy after being sued by in a personal injury action by a plaintiff who claimed that the insured intentionally shot him in the abdomen. After receiving the claim, his insurance company disclaimed coverage based on the policy’s exclusion for “expected or intended conduct.” In response, the insured, who had been arrested and charged for allegedly shooting the plaintiff, filed a declaratory judgment under his policy. Although the plaintiff claimed the shooting was intentional, the court held that the exclusion did not relieve the insurer of its duty to defend. In doing so, the court reasoned that despite the plaintiff’s allegations, the shooting could be reasonably interpreted as being accidental because a cause of action for assault can be established through recklessness or criminal negligence. The broadness of an insurer’s duty to defend is well-known, but Guzy is an excellent example of how far courts can go in upholding the duty to defend. Thanks to Michael Gauvin for his contribution to this post. Please email Brian Gibbons with any questions.       Previous Next Contact

News It’s Not An Accident That You’re Sick (PA) February 22, 2019 < Back Share to: In Mollura v. Aflac Insurance, the Pennsylvania Court of Common Pleas grappled with determining whether a sickness constitutes an accident under policy language. In Mollura, a physician, Joseph Mollura, provided health care for the Pennsylvania State Prison System. Pursuant to his employment, he purchased an accidental injury insurance policy. Mollura, unfortunately contracted legionella pneumonia from the water source at his job and later died. Mollura’s widow then sought death benefit payments under the Policy which were denied, and she subsequently commenced a lawsuit seeking those benefits. The relevant policy language provided that Mollura was only covered for accidents, specifically stating that the Policy “does not pay benefits for loss from sickness.” The Policy also contained an exclusion for “loss, injury, total disability or death contributed to, caused by, or resulting from…sickness.” The Policy defined sickness as “any disease or bodily/mental illness or degenerative process.” In reaching its conclusion, the court looked to case law in Pennsylvania that distinguished between an accident, which was a sudden and unexpected event/occurrence at a particular time, and a sickness, which was always “latent and insidious.” The Court found that there was a clear distinction between a sickness and an accident. As such, the Court ruled that the Policy did not provide coverage for Mollura’s contraction of pneumonia and there was no coverage under the Policy. Thus, this case reveals that, in connection with certain policies, Pennsylvania courts may attempt to draw a distinction between an accident and a sickness. Thanks to Malik Pickett for his contribution to this post. Please email Colleen Hayes with any questions. 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 Limited Range of Motion Sufficient to Defeat Threshold Motion February 4, 2011 < Back Share to: < ![CDATA[Limited Range of Motion Sufficient to Defeat Threshold Motion]]> Previous Next Contact

News First Department Holds Conjecture is Insufficient to Raise a Triable Issue of Fact in Pedestrian Accident March 29, 2024 < Back Share to: In McHugh v. Peduto Construction Corp, et al , Plaintiff alleged he tripped and fell over a pothole in the road near a construction site. Defendant/Third-Party Defendant Peduto Construction Corp. filed a motion for summary judgment on the grounds that it performed work only on the sidewalk, not in the road. In support of its motion, Peduto submitted documentary evidence and testimony reflecting that it was hired by Con Edison to mend a cut made by Con Edison on the sidewalk only. Despite this evidence, the Supreme Court denied Peduto’s motion. The Appellate Division, First Department, reversed, holding that Plaintiff failed to raise an issue of fact in response to Peduto’s motion for summary judgment. The Court held that in order to raise a triable issue of fact, Plaintiff had to prove a “finding of proximate cause based not upon speculation, but upon the logical inferences to be drawn from the evidence.” Flores v. City of New York , 29 A.D.3d 356, 358 (1st Dep’t 2006). The Court highlighted that deposition testimony that Con Edison would sometimes provide verbal instructions to contractors, without evidence Con Edison did so in the instant matter, was insufficient to raise an issue of fact because it was “merely surmise or conjecture.” McHugh v. Peduto Construction Corp. et al. , 2024 NY Slip Op 01515 (1st Dep’t 2024). The Court further noted that such an inference contradicted Peduto’s testimony that verbal orders from Con Edison would be reflected in a work order inspected by Con Edison. Finally, the Court addressed Plaintiff’s argument that the “geographic and temporal proximity of Peduto’s work” created an issue of fact as to whether Peduto performed work in the subject location. Id. The Court held this argument was speculative and unavailing. McHugh v. Peduto Constr. Corp. .pdf Download PDF • 1.09MB Previous Next Contact

News Overpowering Food Odors Not Pollution Under CGL Policy August 4, 2010 < Back Share to: In Barney Greengrass Inc. v. Lumberman's Mutual Casualty Co., 09 Civ. 7697 (S.D.N.Y. 2010), the insured -- a well-known Manhattan deli celebrated for its sturgeon -- was sued by its landlord for claims by a resident that “overpowering food odors” emanating from the deli caused his apartment to be uninhabitable. The deli tendered the claim to its insurer who then disclaimed on the grounds of the pollution exclusion. The federal court ruled that the “pollution” exclusion does not apply to restaurant odors because a reasonable insured would not understand the exclusion to cover the natural byproduct of its business for which it is celebrated. The court pointed to a Zagat survey of the restaurant that stated: “The smells alone are worth the price of admission.” http://cityroom.blogs.nytimes.com/2010/08/02/in-many-ways-judge-says-insurers-argument-stinks/ http://pdf.wcmlaw.com/pdf/Greengrass.pdf Thanks to Mendel Simon for his contribution to this post. Previous Next Contact

News Take Notice! July 19, 2024 < Back Share to: Last week the U.S. Court of Appeals Third Circuit upheld a District Court’s order granting summary judgment to Home Depot USA, Inc. in a slip and fall case. Pro se plaintiff Anastasios Smalis (“Smalis”) alleged that he slipped and fell in a restroom of a Pittsburgh Home Depot. He observed water on the floor after he fell, but he “did not know the source of the water or how long it had been there and – being startled from his fall – did not notice anything that could have caused the floor’s hazardous condition.” Smalis v. Home Depot U.S.A., Inc. , No. 24-1094, 2024 WL 3372917, at *1 (3d Cir. July 11, 2024). Thereafter he commenced a state court lawsuit against Home Depot, which then removed the case to the U.S. District Court. On December 7, 2023 the District Court granted Home Depot’s motion for summary judgment against Smalis, finding that “there [was] no evidence Home Depot caused the water in the men’s restroom nor that it had actual notice of it,” and that Smalis failed to present evidence as to how long the water had been present on the floor prior to his fall, thus preventing him from establishing Home Depot knew the water was on the floor and therefore had constructive notice of the condition. Id. Some 32 days after the Court’s summary judgment decision was entered, Smalis filed a motion for reconsideration which was denied as untimely. Smalis appealed. The Third Circuit upheld the District Court’s summary judgment decision for substantially the same reasons set forth in the District Court’s opinion. As for Smalis’ motion for reconsideration, the Third Circuit also upheld the District Court’s decision, as the Federal Rules of Civil Procedure provide that any motion for a new trial or to alter or amend a judgment must be filed within 28 days of the entry of judgment. As Smalis failed to file his motion within the required 28 day period (32 days) his motion was properly denied as untimely. Id. This decision, while brief, demonstrates the importance of filing a summary judgment motion in a slip and fall case where Plaintiff has failed to present evidence to establish actual or constructive notice. It also reminds us of the importance of adhering to filing deadlines when moving to alter or amend judgment, or, moving for a new trial. Smalis v. Home Depot USA Inc. .pdf Download PDF • 136KB Previous Next Brian T. Noel Brian T. Noel Partner +1 267 331 3891 bnoel@wcmlaw.com Contact

News I Wasn’t Aware; Isn’t Enough (PA) August 8, 2019 < Back Share to: In Peters v. Wellsboro, the Pennsylvania Superior Court recently ruled on whether a plaintiff carried her burden establishing that a landowner breached its duty of care. Specifically, one evening, Helen Peters was dining at the Penn-Wells Hotel in Wellsboro, Pennsylvania, with her husband. As they left the hotel/restaurant, Peters slipped and sustained injuries. She claimed that she fell on a step that was unsafe, insufficiently lit, and generally posed a hazard to anyone exiting the restaurant. Peters and her husband filed suit against the hotel, claiming, primarily, negligence. During discovery, Peters was deposed and testified that she missed the allegedly dangerous step because she did not realize it was there and its presence needed to be more pronounced. At the close of discovery, the defendants moved for summary judgment, arguing that Peters and her husband failed to show any breach on their part caused Peters to fall. The trial court granted the motion, dismissing the case. Peters appealed. In any claim for negligence under Pennsylvania law, the claimant must show that the defendant owed a legal duty and that the duty was breached, causing harm to the claimant. A business invitee, like a restaurant or hotel patron, such as Peters, is owed the highest level of care. Accordingly, the landowner has an affirmative duty to protect the invitee from all known dangers, as well as those dangers that could be discovered with reasonable care on the landowner’s part. Applying this standard, the Superior Court, ultimately, agreed with the trial court’s ruling reasoning the only evidence Peters had produced to establish a breach of that duty was her testimony that she was unaware of the step. According to the Court, this was insufficient to establish that the hotel breached its duty to Peters, and, thus, the Court affirmed the trial court’s decision. Accordingly, this case illustrates that a plaintiff-invitee’s lack of awareness of an allegedly dangerous condition, alone, will likely be insufficient to prove that a landowner breached its duty of care to the invitee. Thanks to Robert Turchick for his contribution to this post. Please email Colleen E. Hayes with any questions Previous Next Contact