News Beware of Plaintiffs Who “Trip Up” on their Cases (PA) February 12, 2020 < Back Share to: In Katie Synder v. Ava Hunt et al., the Pennsylvania Superior Court analyzed compulsory nonsuit in a premises liability case. The basis of the lawsuit is Plaintiff Snyder was walking across the shared driveway of eight defendants on the 6100 blocks of Castor Avenue and 1400 blocks of Benner and Lardner Street in Philadelphia. Plaintiff claimed that she tripped and fell in a hole behind a large crack while walking on the driveway and filed a negligence action against multiple defendants. Plaintiff claimed defendants failed to uphold their duty to maintain the driveway and were the direct cause of her injuries. Plaintiff also filed suit against the City of Philadelphia. All defendants subsequently filed cross-claims for indemnification and contribution against one another. At trial, plaintiff presented a land surveyor as an expert witness. In preparation for trial, he surveyed the driveway and inspected the deeds for the surrounding properties. He testified as to the location where plaintiff fell and stated that all of defendants’ properties “have the common use and right to use that driveway”. During cross-examination, the expert was forced to admit that he did not bring all of the deeds with him and he could not testify as to the specifics of the deeds other than for one property. Following the case-in-chief, counsel for all defendants filed for nonsuit, which was granted, and the parties stipulated to dismiss the City of Philadelphia from the case. Plaintiff filed a motion to remove nonsuit, which was subsequently denied. Plaintiff appealed and filed a concise statement of errors, to which the trial court concluded that nonsuit was appropriate. Plaintiff failed to provide evidence as to liability for some defendants and a relationship to the actual matter for others. Plaintiff appealed to the Superior Court. For compulsory nonsuit to be proper, it must be apparent that plaintiff does not have a claim. Favorable evidence and related inferences as to the plaintiff are considered and any conflicts are resolved in plaintiff’s favor. In order for a motion to remove nonsuit to be appealed, there must be a final judgment. In this case, while there was a denial of plaintiff’s motion for nonsuit, there was not a final judgment as none of the parties moved for entry of judgment. The Court decided that plaintiff’s appeal must be quashed, as it was premature in the face of the lack of judgment and also due to the cross-claims between the defendants that were still open. The defense was apparently organized and prepared for cross examination of plaintiff's expert, which resulted in a favorable outcome for most defendants. Seasoned litigators will press for a favorable outcome at all times and defeat inexperience. Thanks to Gabrielle Outlaw for her contribution to this post. For questions or comments, please contact Vincent Terrasi. Previous Next Contact

News Labor Law § 240(1): Tighter Rules, Less Wiggle Room for Defendants August 23, 2024 < Back Share to: In Amaro v. New York City School Construction Authority , the Appellate Division, Second Department, provided a clarification regarding the application of Labor Law § 240(1), emphasizing the strict liability nature of the statute and the limited applicability of the sole proximate cause defense. The plaintiff, Oscar Amaro, was injured when a scaffold plank broke beneath him. Although Amaro was wearing a safety harness, he did not tie his lanyard to the scaffold because he was carrying a pipe in one hand and a clamp in the other and therefore was not able to unhook and re-hook the 4-foot-long lanyard to travel the 20-foot distance to the wall. When the injured plaintiff was approximately five feet away from his coworker, the wooden plank he stepped on broke, causing him to fall. The defendants argued that Amaro’s failure to secure the lanyard was the sole proximate cause of the accident and that he acted as a recalcitrant worker, thus attempting to circumvent liability under § 240(1). The Appellate Division reversed the trial court’s denial of summary judgment for the plaintiffs, underscoring that once a violation of Labor Law § 240(1) is established, and it is shown to be a proximate cause of the injury, defendants face a steep burden in avoiding liability. The court rejected the defendants’ arguments, highlighting that the plaintiff’s alleged comparative negligence or any failure to utilize safety devices is not a defense unless it can be conclusively shown that these factors were the sole proximate cause of the injuries. Moreover, the court found no evidence to support the claim that Amaro was a recalcitrant worker. Amaro v. New York City Sch Constr Auth .pdf Download PDF • 154KB Previous Next Contact

News Clean up on Aisle 9-The Retained Control Exception to Independent Contractor Rule February 22, 2018 < Back Share to: In Pennsylvania, a property owner is usually not liable for the injuries of an independent contractor’s employee, but there is an important exception of which property owners need to be aware. In Santiago v. Wegmans, Wegmans retained GCA, an independent contractor that sent Santiago to perform janitorial services at a Wegmans retail location. The Plaintiff slipped and fell on ice while sweeping dock plates near the frozen foods warehouse. Plaintiff sued Wegmans alleging it negligently maintained its property. Wegman’s moved for summary judgment arguing it was not liable for the injuries sustained by an independent contractor’s employee. Plaintiff opposed by invoking the “retained control” exception, where a property owner can be liable for the injuries an independent contractor if the property owner retains “control over the manner in which the work is done.” The Court found that Wegman’s exerted significant control over GCA’s janitorial services, as evidenced by the service agreement that specified how each floor type was to be cleaned, and even specified the cleaning products to be used. Accordingly, the Court denied the motion. The retained control exception is important because it prevents property owners from controlling the services of an independent contractor, as they would with an employee, while also escaping the negligence liability that would usually accompany an employment relationship. The Court looked to the Nertavich v. PPL Elec. Utilities decision in which the Court noted that engaging an independent contractor “implies that the contractor is independent in the manner of doing the work contracted for,” and “presumably knows more about doing it than the party who by contract authorized him to do it.” There was clear evidence in the Wegmans case that the Defendant was trying to control the specific manner in which the janitorial work was completed. Property owners must ensure that their independent contractors are being treated as “independent.” If not, the property owner may actually be responsible for any injuries resulting from “clean up on aisle 9.” Thanks to Malik Pickett for his contribution to this post.       Previous Next Contact

News It's Fair Use And I Don't Have To Give You Credit April 26, 2013 < Back Share to: The US Court of Appeals for the Second Circuit has held that a secondary use of a copyrighted work does not require comment on the original artist or work in order to qualify for the fair use defense to infringement under the Copyright Act. The lower court in Cariou v. Prince, had issued an injunction against Prince and the gallery that displayed his work with respect to their continued altered use of 25 paintings originally found in Cariou's book. The lower court also imposed a requirement that the new work had to comment on or refer back to the original work in order to qualify as fair use. The Court of Appeals disagreed and noted that the law imposes no requirement that a work comment on the original or its author in order to be considered transformative and a secondary work may constitute a fair use even if it serves some purpose other than those identified in the statute, namely criticism, comment news, reporting, teaching, scholarship and research. The determination of whether secondary use of a copyrighted work constitutes a fair use turns on several factors, including the purpose of the use, the nature of the copyrighted work, the amount of the portion used in relation to the copyrighted work and the effect of the use upon the potential market for the value of the copyrighted work. The Court noted that the transformative nature of the work was the heart of the fair use inquiry and held that Prince had presented an entirely different aesthetic from Cariou's original photographs. For more information, please contact Nicole Brown at nbrown@wcmlaw.com .   Previous Next Contact

News An Article About Snow In The Summer? Still Worth A Read (NJ) May 23, 2019 < Back Share to: In Oyebola v Wal-Mart Stores, Inc. the New Jersey appellate court recently affirmed the applicability of the Ongoing Storm Doctrine with respect to a slip and fall accident in the parking lot of a Walmart store. The Ongoing Strom Doctrine allows commercial businesses a reasonable amount of time after the cessation of snowfall to clear the snow and ice. With respect to the instant matter, the Court critically determined that it was undisputed that (a) the storm was ongoing at the time of the alleged accident and (b) Walmart had a third-party contractor that was onsite performing snow removal activities. Nonetheless, plaintiff submitted a liability expert report, arguing that Walmart failed to create a proper protocol with respect to snow removal practices and procedures in a specific manner that would best mitigate potential risks and harms for customers. The Court determined that, despite the plaintiff submitting a liability expert report, no genuine dispute of a material fact existed as the only critical fact was that all parties admitted it was still snowing at the time of the slip and fall. Specifically, despite Walmart possibly not adhering to best practices by failing to create a proper snow removal protocol, the lack of said protocol cannot create a disputed fact. In essence, the Court determined that even if Walmart did not maintain a snow removal protocol, liability could not apply as it was still snowing. The Ongoing Storm Doctrine is alive and well in New Jersey. Thank you to Matthew Care for his contribution to this post. Previous Next Contact

News WCM Obtains Favorable Result in Philadelphia Premises Arbitration. February 13, 2017 < Back Share to: Philadelphia office associate Peter Cardwell recently obtained a favorable result in a Philadelphia County trip and fall case. In Quarles v. 1800 North 17th St LLC, et. al., the plaintiff alleged that she tripped and fell due to a defective sidewalk condition on our client’s property located at 12th and Diamond Streets in North Philadelphia near Temple University. The plaintiff argued that our client negligently maintained its property by allowing a defect to occur. In opposition, we argued that our client could not be held liable for the plaintiff’s alleged injuries because she did not establish that our client had actual or constructive notice of any alleged defect. In addition, we argued that any finding of liability upon our client must be diminished by the fact that the plaintiff was comparatively negligent, that there were numerous inconsistencies in her story, she only suffered soft-tissue injuries which are fully healed, she stopped seeking medical treatment, she had less than $1,000 in lost wages, and she had no outstanding medical bills. The arbitration panel agreed with our assessment and awarded the plaintiff damages that were significantly lower than the plaintiff's pre-arbitration demand. For more information about this post, please e-mail Bob Cosgrove. Previous Next Contact

News Plaintiff Recovers Lost Earnings Despite His Expert's Failure To State Plaintiff Can't Work December 9, 2011 < Back Share to: In Abrahamsen v JMK Bldg. Corp., the plaintiff, a carpenter, was injured when he fell through an opening in the floor that had been covered by a piece of unsecured plywood. After the close of evidence, the trial court denied the plaintiff's request to charge the jury as to past and future lost earnings on the ground that the plaintiff had not produced expert testimony opining that the plaintiff could no longer work because of his injuries. The plaintiff had conceded that he had not looked for work since the accident. However, the Appellate Division held that the trial court erred and ordered a new trial on damages. In finding that the plaintiff set forth sufficient evidence to warrant a jury charge regarding lost earnings, the court emphasized that the plaintiff met this burden with his testimony that he couldn't work; a psychologist's testimony that the plaintiff was "effectively unemployable" as a result of his injuries and his learning disability; the testimony of the plaintiff's orthopedic surgeon that the plaintiff's injury was permanent and his prognosis was poor,;and the parties' medical experts agreed that the plaintiff was physically unable to work as a carpenter as a result of the subject accident. http://www.nycourts.gov/reporter/3dseries/2011/2011_08889.htm Thanks to Bill Kirrane for his contribution to this post. Previous Next Contact

News Regular Maintenance Does Not Qualify For Labor Law Action (NY) October 30, 2013 < Back Share to: A fall from an elevated height, due to work that is incidental to regular maintenance does not create a cause of action under Labor Law § 240(1). In Hull v. Fieldpoint Community Assn., Inc., plaintiff was allegedly injured when she fell from a roof while she was cleaning out leaves from the roof gutters of a residence in a condominium development. Her work was performed pursuant to a contract between her employer and the defendant Fieldpoint Community Association, Inc., requiring her employer to clean gutters and leaders, inspect, and caulk openings three times per year. The defendants moved for summary judgment on plaintiff’s Labor Law § 240(1) claim, and plaintiff cross-moved for summary judgment on the issue of liability. The Appellate Division, Second Department, upheld the lower court’s decision in granting defendants’ motion for summary judgment, and in effect denying plaintiff’s motion. The Court held that although Labor Law § 240(1) applies to commercial "cleaning" which is not part of construction, demolition, or repair, such as commercial window washing and sandblasting, it does not apply to work that is incidental to regular maintenance, such as clearing gutters of debris. Therefore, the defendants established, prima facie, their entitlement to judgment as a matter of law with respect to the cause of action pursuant to Labor Law § 240(1). Hull established that people performing regular maintenance at an elevated height better take precautions, as there will be no cause of action under the Labor Law. Special thanks to Johan Obregon for his contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Elevator Mishap Does Not Equate to Elevator Malfunction (NY) May 11, 2016 < Back Share to: A guy walks onto an elevator with a handtruck holding a stove, cabinet doors and other items. When the door shuts, it knocks the unsecured doors onto the floor and the guy's foot. So, of course, he sues the owner and the elevator servicing company. In Kawka v. 135-55 35th Realty LLC, the defendants successfully moved for summary judgment. The property owner established that it did not have actual or constructive notice of any defect in the elevator door. The servicing company established that its maintenance contract did not assume possession, management, or control of the elevator. Although an elevator maintenance company may be liable to a passenger for failure to correct conditions of which it had knowledge or failed to discover and correct, there was no such evidence in this case. The plaintiff did produce an expert report. However, the Second Department found it to be speculative and unsupported. Thanks to LaurenTarangelo for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Right to Stop Work for Emergencies Insufficient Control under Labor Law (NY) September 15, 2017 < Back Share to: Under the infamous New York Labor law governing construction cases, a construction manager of a work site is generally not liable unless it functions as an agent of the property owner or general contractor in circumstances where it has the ability to control the activity that brought about the injury. That issues was at the forefront of Lamar v. Hill International, Inc. Plaintiff was working on the 7 train subway extension project on the West side of Manhattan when he allegedly fell from the top of a 10 foot hight stack of blasting mats. Both sides moved for summary judgment, and the construction manager defendant prevailed on the grounds that plaintiff did not adequately show that the construction manager had the authority to exercise supervision and control over the work that brought about the injury so as to enable them to avoid or correct an unsafe condition. Specifically, as discussed in the appeal, the construction management services contract provided that these defendants were responsible for acting as liason with contractors to ensure that the project was completed in accordance with cost, time, safety, and quality control requirements and reporting to the MTA. The contract did not, however, confer upon these defendants the authority to control the methods used by the contractors, including the plaintiff’s employer, to complete their work. The construction manager defendants were authorized only to review and monitor safety programs and requirements and make recommendations, to provide direction to contractors regarding corrective action to be taken if an unsafe condition was detected, and to stop work only in the event of an emergency. The deposition testimony confirmed that the construction managers did not have control or a supervisory role over the plaintiff’s day-to-day work and that they did not assume responsibility for the manner in which that work was conducted. As such, the Appellate Division agreed that the trial court properly awarded the defendants summary judgment dismissing plaintiff’s complaint. Thanks to Sara Matschke for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Victorious Plaintiff In DJ Action Entitled To Attorney Fees In Companion Action June 24, 2009 < Back Share to: In Myron Corp. v. Atlantic Mutual Ins. Co., the plaintiff, a New Jersey corporation, was insured under a CGL policy issued by Atlantic Mutual in New Jersey. Several businesses in various states sued Myron claiming that it sent them “junk faxes” in violation of federal law. Atlantic Mutual refused to defend or indemnify Myron and commenced a declaratory judgment action in Illinois that was eventually dismissed. Myron ultimately won its coverage suit in New Jersey and the Appellate Division held that because Myron prevailed on the merits of its New Jersey coverage lawsuit and was entitled to fees for that litigation, Myron was also entitled to counsel fees for the Illinois litigation because that action stemmed from the same controversy over the coverage issue. Thanks to Claudia Condruz for her contribution to this post. http://www.judiciary.state.nj.us/opinions/squibs08-09.pdf Previous Next Contact

News "Arising Out Of" means "But For" in PA April 27, 2017 < Back Share to: Many insurance policy conditions and exclusions are triggered by the phrase "arising out of" and the Third Circuit recently ruled on this issue in a case pertaining to asbestos-related claims. General Refractories Co. v. First State Ins. Co., involved a coverage dispute between General Refractories Co. and Travelers for numerous claims brought by claimants allegedly injured following exposure to GRC’s asbestos-containing products. The asbestos exclusion in the Travelers policies excluded coverage for injuries or losses “arising out of” asbestos. GRC noted that prior policies distinguished between claims stemming from direct exposure to asbestos fibers and those arising from exposure to asbestos-containing products. GRC claimed on this basis that the term "asbestos" in its policy referred only to the physical substance in its raw form, which it did not produce and that the exclusion was ambiguous. Travelers argued that the exclusion had only one reasonable interpretation — that claims for injuries related to asbestos in any form were excluded from coverage. The district court agreed with GRC, and the judge determined that the exclusion was ambiguous and must be construed in GRC's favor. GRC appealed the ruling to the Third Circuit, who held that the “provision plainly encompasses losses that would not have occurred but for asbestos or which are causally connected to asbestos,” regardless of whether in its raw form or within another product. The court found the exclusion to be unambiguous and enforceable. Under Pennsylvania law, the term “arising out of” requires “but-for” causation. “But-for” causation does not require a showing that a product proximately caused an injury. Since the losses relating to the underlying asbestos claims would not have occurred but for asbestos, whether raw or within finished products, the exclusion was applicable. Because all of the claims against GRC arose out of asbestos under the “but-for” causation standard, Travelers was not obligated to provide coverage for the claims. As such. the appellate court reversed the district court ruling. Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono if you would like further information. Previous Next Contact