News Second Department Expands Labor Law 240 to Fall from 8 Inch Platform March 21, 2016 < Back Share to: The majority in the Second Department expanded Labor Law 240 to encompass a fall from an 8-inch high platform of a prime mover (a mini forklift). In Somereve v. Plaza Construction Corp., plaintiff operated a prime mover to hoist a load of bricks onto scaffold approximately six feet high. While plaintiff was operating the machinery and placing the bricks atop the scaffold, the forklift flipped forward and plaintiff fell off the platform of the machine onto the floor. The majority found plaintiff was catapulted from the machine – he was ejected upward, hit the ceiling and was slammed to the ground. The majority found this sequence of events ‘gravity related,’ regardless of the fact that the platform from which plaintiff fell from was eight inches high. Plaintiff moved for partial summary judgment on the Labor Law § 240(1) claim prior to the completion of depositions. Plaintiff’s motion was granted on the basis the prime mover moved forward due to the force of gravity and failed to offer adequate protection to the plaintiff. The Court found that if the accident occurred because the mover or the scaffold could not support the weight of the bricks, gravity applied during the hoisting operation and plaintiff was entitled to summary judgment. The majority of the court did not require further discovery or depositions since comparative negligence was not a defense to Labor Law § 240. The dissent found the majority’s reasoning conclusory since there was no defect in the machine or the scaffold or any evidence that the mover could not support the weight of the bricks. The minority argued that the platform of the machine was not a type of elevation related risk enumerated in the statute, the fall was de minimis and plaintiff could not provide an explanation as to how his accident occurred. Plaintiff did not argue that a hoisting device should have been provided, and no evidence was offered to show that a hoisting device was even proper equipment for plaintiff to work at the time of his injuries. Further, the dissent argued there was a factual issue as to whether plaintiff’s injuries were caused solely by his own negligent operation of the machine and further discovery and depositions were necessary to determine the intricacies regarding plaintiff’s accident. The First Department has continually expanded the reach of Labor Law 240, and now we see that the Second Department is following suit. Previously the height from which a plaintiff fell could create a de minimus fall defense, but with each decision expanding Labor Law 240 application, it appears that the Appellate Divisions are chipping away at that defense. Thanks to Poonam Sethi for her contribution to this post.       Previous Next Contact

News Sanctions Or A Slap-On-The-Wrist? (NY) November 11, 2022 < Back Share to: In Castillo v. Charles (2022 NY Slip Op 06103), an action to recover damages for personal injuries, the Appellate Division Second Department, department modified the lower courts order striking the plaintiff’s pleadings, as it was “too drastic of a remedy” (see Turiano v. Schwaber, 180 AD3d 950, 952; see also Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 211). Here, plaintiff violated court multiple court orders including those directing her to appear for a continued deposition. Plaintiff also failed to disclose photographs referenced in her first deposition, and failed to provide authorizations to obtain records from certain medical providers. The court agreed that the record supports an inference of willful and contumacious behavior, striking the pleading, in this instance, was too drastic of a remedy. The court modified the lower courts order, granting defendant’s motion only to the extent of precluding plaintiff from using the undisclosed photographs at trial, directing plaintiff to provide medical authorizations demanded by defendants and directing plaintiff’s counsel to personally pay $3,000 as a sanction to defendant. Sanctions are intended to reinforce the notion that all parties must “play by the rules”. This decision hands out a slap-on-the-wrist as a penalty for plaintiff, while ignoring the fact that failing to disclose evidence could be detrimental to opposing counsel’s ability to make or defend their case. Thanks to Kara Nelson for her contribution to this article. Should you have any questions, please contact Heather Aquino. Previous Next Contact

News Appellate Court Grants Product Recall Insurers Big Win. November 11, 2011 < Back Share to: There aren't many product recall decisions out there, but every once in a while they come along. In the Fresh Express case in California, contaminated spinach was at issue. The trial court ruled for the insured and awarded policy limits of $12,000,000. The case went up on appeal and the California appellate division has now justweighed in. The appellate division reversed the trial court. Of significance, the appellate division held that not every contamination is an insured event, i.e. not every contamination is accidental thereby triggering coverage. This is good news for product recall insurers as insureds (and courts) have a tendency to equate the two. For more information about this post or WCM's product recall practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News What Is A Passageway Under NY Labor Law?” (NY) January 20, 2023 < Back Share to: When a plaintiff alleges a Labor Law 241(6) predicated upon a New York City Rules & Regulations code, the plaintiff must establish a prima facie case that the NYCRR is violated. For example, in Stewart v. Brookfield Off. Props. Inc., 2023 NY Slip Op 00226 (2d Dep’t January 18, 2023), the plaintiff allegedly fell at a construction site while installing a lighting fixture. Plaintiff subsequently commenced a lawsuit against the defendant and depositions were conducted. Plaintiff testified at his deposition that he stepped off of a ladder and immediately tripped on a raised portion of the concrete floor. Thereafter, defendants moved for summary judgment arguing that there was no labor law violation because the plaintiff’s injury did not occur on a passageway, which is a predicate to proving a violation. 12 NYCRR 23-1.7(e)(1), which requires owners and general contractors to keep all passageways free of obstructions which could cause tripping, is inapplicable because the site where the plaintiff allegedly tripped was not a passageway. Specifically, the Court stated, “In order to establish liability under Labor Law § 241(6), a plaintiff must "establish the violation of an Industrial Code provision which sets forth specific safety standards," and which "is applicable under the circumstances of the case.” The lower court held, and the second department recently affirmed, that the defendant’s established the plaintiff’s injury did not occur in a passageway and therefore, there was no NYCRR violation. Accordingly, summary judgment was granted to the defendant. Thanks to Lauren Howard for her contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News PA Supreme Court Virtually Eliminates Sidewalk Liability for Municipalities. May 22, 2009 < Back Share to: In the case of Reid v. City of Philadelphia, the plaintiff slipped on snow and ice that had accumulated on a sidewalk adjacent to a Philadelphia police station. The plaintiff proved that the City was negligent in its removal of snow and ice, but in opposition the City argued that it was exempt from claims under 42 Pa.C.S. § 8541, the Political Subdivision and Tort Claims Act. Plaintiff argued that the 8542(b)(3) exemption (which holds that a municipality can be primarily liable for failure to maintain real propery) applied. The trial court and Commonwealth court agreed with plaintiff. The Supreme Court, however, disagreed, It held that the 8542(b)(3) exemption does not apply to sidewalks – only real property. http://www.pacourts.us/OpPosting/Supreme/out/J-95-2007mo.pdf Previous Next Contact

News PA Court Vacates $35 Million Award due to Plaintiff's Potential Negligence May 25, 2018 < Back Share to: Under the Pennsylvania’s Comparative Negligence Act, a plaintiff’s contributory negligence can be considered when compared to a defendant’s negligent conduct— but not to reckless conduct. Recently, the Superior Court established an interesting work-around in the context of multi-plaintiff actions, where one plaintiff can be held liable to the defendant for contribution and indemnity for the harm that plaintiff’s actions contributed to the other plaintiffs’ injuries. In Straw v. Fair, Plaintiff John Straw was driving with three family members on the highway when the car’s failed hood mechanism caused the hood to open and obstruct his view. Mr. Straw stopped the car in the travelling lane and turned on his hazard flashers. Kirk Fair was driving a truck for Golon Masonry behind the Straws. Mr. Fair was under the influence of drugs, did not notice the stopped car, and crashed into the Straws at approximately 60 miles per hour. The accident seriously injured Mr. Straw and two of the passengers; the Straws’ six year-old-son died. Mr. Fair was convicted of several crimes, including DUI and Recklessly Endangering Another Person (REAP). Golon Masonry filed a cross-claim against Mr. Straw for indemnity and contribution. The basis of the claim was that Mr. Straw was responsible for the passenger’s injuries because he did not need to leave the car in the running lane. The Straws filed a motion for summary judgment of Golon Masonry’s cross-claim, and the trial court ruled that because Mr. Fair’s conduct was reckless—as evidenced by his guilty plea to REAP—Mr. Straw’s comparative negligence could not be considered because the Act only applies to a defendant’s negligent conduct. The case went to trial and the jury returned a verdict of $35 million. The Superior Court reversed the trial court’s finding because it “mistakenly confused [Golon Masonry’s] cross-claim against Mr. Straw with [Golon Masonry’s] affirmative defense that Mr. Straw was comparatively negligent for his own injuries.” The Superior Court reasoned that the trial court was correct in interpreting the Act as not applying to reckless conduct. However, in asserting a cross-claim for indemnity or contribution, defendants were not alleging that Mr. Straw’s negligence should not reduce or diminish his recovery. Rather, the cross-claim alleges that Mr. Straw’s negligence renders him directly liable to the passengers or to defendants for contribution. Thus, Mr. Straw was essentially just another defendant as to this cross-claim. The Superior Court clearly held that Pennsylvania law permits contribution between reckless and negligent co-defendants—and in this context can be applied to a plaintiff. As a result, the Superior Court reversed the trial court’s motion for summary judgment and vacated the $35 million verdict. Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Are Hunters a Protected Class? September 23, 2010 < Back Share to: During jury selection, litigants are permitted a certain number of “peremptory challenges” which allow them to reject a potential juror without cause or explanation. The United States Supreme Court, however, held in Batson v. Kentucky that an attorney cannot exercise such a challenge in a manner that discriminates against potential jurors due to their race, gender or ethnic background. Recently, in People v. Robar, a judge in upstate New York said that, pursuant to Batson, an attorney could not use peremptory challenges to systematically excluded hunters. During a hunting incident, Robar shot another hunter with his high-powered rifle, and was charged with assault and reckless endangerment. During jury selection, Robar’s attorney used six of ten challenges on hunters. The Court found that hunters were "a class of people recognized by law" who are licensed "to bear arms," pursuant to the Second Amendment but were “systematically excluded." We doubt this decision will stand, as an appellate court is likely to agree with defense counsel’s arguments that hunters are not a cognizable class under Batson and that hunting is a hobby that is not protected in the same manner as race or gender. We’ll keep you posted. Please contact Mike Bono at mbono@wcmlaw.com if you would like more information about this post. Transcript of Decision Previous Next Contact

News NY Finds Coverage for Successor Liability. July 6, 2012 < Back Share to: In the case of Kerry, Inc. v. Travelers, plaintiff Kerry, Inc. purchased virtually all of St. Louis Flavors Corp.’s assets under an Asset Purchase Agreement in 2002 (the APA). The St. Louis Flavors Corp. had operated a flavorings business where it manufactured diacetyl and diacetyl-containing products. Diacetyl is a natural byproduct of fermentation used in, among other things, artificial butter flavoring. After the sale, several underlying actions arose and alleged personal injuries arising from exposure to St. Louis’ diacetyl. The underlying actions also alleged tortious conduct by Kerry on a de facto merger and continuation theory of liability. As such, the defendant insurer, Travelers, which had insured St. Louis, did not believe it had a duty to defend Kerry in the underlying actions because the underlying actions were not brought until after the sale between Kerry and St. Louis. Travelers argued that it did not consent to a transfer of benefits from St. Louis to Kerry. However, the Court found this argument unpersuasive, as all of the underlying plaintiffs' product sale and exposure allegations show that the potential liabilities in question arose before the transfer between St. Louis and Kerry. As such, the Court reasoned that Travelers could not claim that its risk increased from the transfer of the policies from St. Louis to Kerry, regardless of the size of the companies. So, the bottom line here is that the Court found that Travelers was required to defend Kerry in the underlying actions a fact which left Kerry from clamoring…“I can’t believe its not…covered.” Special thanks to Joe Fusco for his contributions to this post. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .   Previous Next Contact

News Student Battles University Over Alleged Incomparable Education Experience & Unjust Enrichment During COVID-19 Pandemic (PA) May 7, 2020 < Back Share to: As the COVID-19 pandemic continues, we have already seen lawsuits filed by restaurant owners, gym members, cruise ship guests, and even students. Recently, Pennsylvania State University (“Penn State”) found itself embroiled in a lawsuit filed by one of its students in the Middle District of Pennsylvania. In Thomson v. Penn State, Tyler Thomson (“Plaintiff”) filed a class action lawsuit alleging that Penn State breached its contract by not reimbursing students for tuition and fees paid prior to the transition to online study. Plaintiff argues that he and other similarly situated class members have been deprived of an in-person educational experience and as a result, they should be refunded their pro rata share of tuition and other fees already paid for the Spring 2020 semester. He believes that Penn State has already demonstrated that an online educational system is incomparable to on-campus learning by charging a reduced rate to students who elect to pursue their degrees online. Plaintiff asserted two classes as part of this lawsuit. The Tuition Class consists of class members who paid Spring 2020 tuition but are unable to proceed with in-person, on-campus learning. The Fee Class consists of class members who paid fees for the Spring 2020 semester. Plaintiff is requesting injunctive and declaratory relief based on two grounds: (1) breach of contract and (2) unjust enrichment on behalf of both classes. For the breach of contract claim, the Tuition Class members assert that they entered an agreement with Penn State, in which they paid tuition in exchange for on-campus learning. The class allegedly suffered injury due to the university’s breach of said agreement. Relatedly, they allege that Penn State was unjustly enriched by failing to provide the programs expected by the students who paid tuition. The university allegedly benefitted at the class members’ expense. Nearly identical theories were articulated for the Fee class members. The bottom line is that Plaintiff thinks Penn should be held responsible for the money it kept despite on-campus closure. As COVID rages on, this issue presents itself to universities and students all over the world. Plaintiff acknowledges that Penn State had no other choice but to close due to the pandemic. However, this issue is not unique to the academic context. We are sure to see more breach of contract claims filed in the next few months and this will certainly change how agreements are structured. Until then, we will see a battle between entities who want to protect their clientele and staff from the dangers of an unknown illness versus consumers — even in the midst of a global crisis. Thanks to Gabrielle Outlaw for this post. Please contact Vincent Terrasi with any questions or comments. Previous Next Contact

News A True "Out of Possesion" Landlord. September 10, 2013 < Back Share to: In Smith v. RMS Residential Properties, LLC, Defendant, RMS purchased a property in Queens through a foreclosure auction in 2008. The former homeowner refused to vacate the premises or provide access to RMS or its Realtor (tasked with re-selling the property) until she moved out in late 2011/early 2012. Plaintiff, a visitor of the former homeowner, was injured when a bathroom light fixture fell on him in August 2011. Plaintiff sued RMS, and RMS moved for summary judgment as an “out of possession” landowner. Plaintiff opposed the motion by invoking New York Multiple Dwelling Law §78,which requires that "[e]very multiple dwelling, including its roof or roofs, and every part thereof and the lot upon which it is situated, shall be kept in good repair.” However, the court noted that, "an owner will not be held liable under section 78 where it has completely parted with possession and control of the building." Here, RMS had no control of the building, thus had no duty to maintain or repair the property and, therefore, could not be held liable for plaintiff’s injuries. Most “out of possession” landowner arguments are made where a lease discharges the landlord’s duty to repair or maintain the premises. Here, though RMS was not legally discharged of the duty via a written lease, the court found that it owed no duty to the plaintiff since it did not factually have control of the building. For any questions about this case, please contact cfuchs@wcmlaw.com .       Previous Next Contact

News NY's First Department examines "arising out of" additional insured requirement. October 29, 2007 < Back Share to: The First Department overruled a Bronx trial court's decision and dismissed the claims against the defendant insurers. The court held that the NYCHA, a would-be additional insured, was not entitled to AI coverage because the underlying claims (involving a man who was shot on the Housing Authority's premises as a result of a faulty electromagnetic locking system) did not arise out of the work of the named insureds which had completed their work before the shooting occurred. http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=7029263 Previous Next Contact

News SDNY denies Lloyd's motion for summary judgment because key JB term was undefined. October 11, 2007 < Back Share to: In the case of Alex & Alex Diamonds, Inc. v. Certain Underwriters at Lloyd's, London, Lloyd's attempted to disclaim coverage because the JB policy did not provide coverage for commission salesmen. Alex & Alex argued that the man from whom the $160,00 worth of jewelery was stolen was not a commission salesman, but rather an employee. Trial court held that because policy did not define term "commission salesman", it could not determine as a matter of law whether individual was (or was not) a commission salesman. http://web2.westlaw.com/welcome/NewYork/default.wl?fn=_top&rs=WLW7.09&mt=NewYork&vr=2.0&sv=Full Previous Next Contact