News Damages Award for Meat Slicer Injury Modestly "Sliced" By Comparative Fault (PA) November 4, 2010 < Back Share to: A delivery person injured by the blade of a disassembled meat slicer recently received over $1.5 million from a Pennsylvania jury. In Fuller v. Easton Healthcare Services Group, Plaintiff, a delivery person for a knife-sharpening and appliance service, was picking up a meat slicer that had been loaned to the Easton Health & Rehabilitation Center. When Plaintiff arrived to retrieve the loaner slicer, an employee of Healthcare Services Group loaded the disassembled slicer onto a cart and wheeled the cart to Plaintiff’s delivery van. As a result of the slicer’s disassembly, the blade guard to the slicer had been removed and placed on a lower shelf of the cart, underneath the slicer itself. Subsequently, the employee lost his balance while attempting to load the slicer into Plaintiff’s delivery van, and in her effort to assist the employee, Plaintiff reached over top of the slicer and lacerated her right forearm, severing nine tendons, an artery, and two nerves. She underwent emergency surgery to reattach the severed nerves and tendons, as well as re-establish blood flow to the severed artery. Despite physical therapy, Plaintiff needed multiple surgeries to remove nerves from her ankle and implant them into her hand, an index finger amputation, and a fusion of her thumb. Plaintiff sued Healthcare Services Group alleging that the removal of the blade guard from the slicer, the failure to reassemble the slicer, and the assumption that Plaintiff would notice that the slicer was not reassembled created an unsafe condition that could foreseeably cause harm. Healthcare Services Group countered that, because it was Plaintiff’s job to retrieve the slicer, defendant was not responsible for placing the blade guard on the slicer, and that Plaintiff’s failure to notice that the blade guard was missing rendered her contributorily negligent. Ultimately, the jury found that Plaintiff was 13% liable and Healthcare Services Group was 87% liable. Thus, Plaintiff’s damages, which included medical costs, lost earnings, pain and suffering, and a loss of consortium claim by her husband, were only reduced from $1,868,987.25 to $1,627,318.91. As such, the jury obviously felt the defendant's handling of the meat slicer was the issue, as opposed to plaintiff's mishandling. This case present the danger of a defense strategy of placing all the blame on a likely sympathetic plaintiff. Thanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News What Happens When Your Expert Goes "Missing"? (NJ) April 9, 2013 < Back Share to: Experienced lawyers seek every advantage at trial. Your adversary fails to lay the proper foundation for a document's admission into evidence? Object and seeks its preclusion. A witness is first disclosed on the evidence of trial? Move to bar the witness from testifying at trial. The "adverse inference" or "missing witness" charge is another potent weapon at trial. Requested when an adversary fails to call a witness under his control, this charge advises the jury that it may infer that the testimony of the missing witness would have been adverse to that party's interests. In a close case, it can be used to highlight your adversary's failure to call a key witness under its control and drive home the point that the missing witness' testimony would likely not have helped your opponent's case. Under what circumstances should an "adverse inference" charge be given when a party fails to call an expert witness at trial? Just how far may an attorney go in summation when urging the jury to consider the failure of an adversary to call an expert witness at trial? In Washington v. Perez, the New Jersey Appellate Division gave some guidance on both questions. In Perez, the plaintiff was injured in a bus accident and there were questions about the impact of a prior injury on plaintiff's present condition and just how badly she was hurt in the bus accident. The defense identified two medical experts during discovery, presumably one who examined plaintiff and the other who read the scans and x rays. For reasons never explained, the defense lawyer took an aggressive position in his opening, boldly declaring that the plaintiff was not injured in the bus accident. However, he did not call either medical expert and offered no evidence on plaintiff's alleged lack of injury. The plaintiff's attorney requested and the court gave an "adverse inference" charge based on the defense's failure to call either of its medical experts. Seizing the moment, plaintiff initially highlighted in his summation the defense's failure to call either of its medical experts to dispute plaintiff's medical evidence. Not content with an adverse inference charge, plaintiff also challenged the "candor" of the defense and argued that it "hid evidence from [the jury]..." This tactic was apparently effective because the jury awarded $500,00 for pain and suffering and $242,000 for economic damages in a case involving soft tissue injury. The Appellate Division was critical of the trial court's application of the "missing witness" charge and troubled about the content of plaintiff's summation. Given those cumulative errors, the Appellate Division reversed and remanded for a new trial. Sometimes, attorneys are not content to accept their good fortune -- in this case, that the court gave an "adverse inference" charge-- and stretch the bounds of fair comment. While it remains a powerful weapon, advocates must recognize the limitations of an "adverse witness" charge and avoid undermining their good work by going too far in their advocacy. If you have any questions or comments, please email Paul at pclark@wcmlaw.com       Previous Next Contact

News WCM Awarded Summary Judgment in Bergen County, New Jersey Declaratory Judgment Action. July 8, 2013 < Back Share to: Mountainside, NJ Partner, Denise Fontana Ricci, was awarded summary judgment in the case of Puglisi v. AJD v. Burlington, a declaratory judgment action involving a general contractor’s attempt to obtain additional insured insurance coverage from a subcontractor. In the underlying action, Puglisi v. AJD Construction, a mason died after falling backwards from a platform that served a hoist elevator used to bring personnel and supplies to the upper floors of the building that was being constructed. The decedent’s estate alleged that the decedent fell while leaning on a horizontal girt support for a canopy over the platform. Notwithstanding the fact that the decedent’s estate sued the scaffold and hoist company, a Burlington Insurance Company insured, the plaintiff ’s expert faulted only AJD, the general contractor, that had overall responsibility for safety on the jobsite. No expert opined that the scaffold and hoist company’s design or initial installation of the platform or hoist was negligent. In the absence of such evidence, the Court granted summary judgment to Burlington’s insured. Notwithstanding this reality, AJD still sought additional insured coverage from Burlington on the basis that the scaffold and hoist company’s Burlington insurance policy included a blanket additional insured endorsement that provided additional insured coverage when the named insured was required to procure such coverage in a written contract but only in situations where the tender arose out of the insured’s work. In this case, because there was no evidence to the contrary, the judge agreed that the tender did not arise out of the insured’s work. The court therefore ruled in favor of Burlington and held that no coverage attached. Previous Next Contact

News Dismissal of Social Guest’s Personal Injury Action Upheld on Appeal August 8, 2018 < Back Share to: In Marroquin v. Espinoza, plaintiff slipped and fell on black ice on her cousins' walkway. Plaintiff and other family members had been staying at the house to celebrate Thanksgiving. On the Saturday after Thanksgiving, it had rained and snowed, but plaintiff did not go outside. Plaintiff went out shopping with her mother the next day. It was not raining, but it was cold. She had no difficulty getting to her car in the driveway. Upon her return, plaintiff parked her car on the street in front of the house. She went inside for a few hours and then proceeded to pack her car with luggage. She had no difficulty walking out of the car with her luggage. However, when she was approaching the car to go home t, she slipped on the walkway leading to the street. She claimed to have slipped on black ice. The trial court dismissed plaintiff’s complaint on summary judgment because, as a social guest, she had the burden of proving that her cousins, the defendants, knew or should have known about the black ice on the walkway. Residential homeowners in NJ have a duty to render private walkways on the property reasonably safe, and to clear snow and ice that presents a danger to known or expected visitors. The residential owner also has a duty to warn of any dangerous condition of which he or she has actual knowledge, and of which the social guest is unaware. The record showed that plaintiff’s cousins were unaware of the icy condition on the front walkway. Neither plaintiff nor defendants said that they knew of the ice prior to the fall. The defendants testified that they cleared and salted the walkway the day before plaintiff’s fall, and one of the defendants testified that the walkway was clear the morning before plaintiff’s fall. Finally, plaintiff proffered no evidence that defendants’ should have known that light rain would cause black ice. This is because plaintiff had no expert to discuss the meteorological conditions or the nature of the walkway. This case is a good illustration of how defense counsel can obtain a dismissal in the absence of an appropriate liability expert report from plaintiff. Thanks to Michael Noblett for his contribution to this post.         Previous Next Contact

News NJ: No Indemnification for Homeowners’ Association from Snow-Removal Contractor. August 31, 2012 < Back Share to: In the case of Franchini v. Beverly Hills Terrace Condominium Association, et al., the Appellate Division was faced with the question of whether a snow-removal contractor was responsible for indemnifying a homeowners’ association for the costs of defending a slip and call case instituted by a unit owner. The relevant facts are as follows. Franchini testified at trial that she was crossing a sidewalk at the homeowners’ association when she fell on an icy sidewalk. She claimed that defendant Greenview, the snow-removal contractor, was negligent in failing to inspect or maintain the sidewalk. She also claimed that the Association was negligent in its conduct of the ownership and operation of the property. After hearing all the evidence, the jury rendered a defense verdict in favor of both the Association and Greenview. The Association then moved for contractual indemnification from Greenview and sought reimbursement for all litigation costs incurred in defending plaintiff’s suit. The indemnification clause that Greenview sought to enforce required Greenveiw to indemnify the Association for any damage or loss arising out of Greenview’s work. The trial court agreed that Franchini’s accident arose out of Greenview’s work and thus it awarded the Association defense costs. Greenview appealed. The Appellate Division first noted that the first step in interpreting a contractual indemnity provision is to determine the intent of the parties. The court noted that absent explicit contractual language, an indemnitee such as the Association may not recover for claims arising out of its own independent fault absent specific language to the contrary. The indemnification provision in this case stated that: “It is the intent of the parties that the contractor’s indemnification and save harmless obligations hereunder are not contingent upon contractor’s fault.” The Appellate Division found that this language could not be construed as an unequivocal statement by Greenview assuming indemnification for the Association’s own independent acts of negligence. It therefore reversed the trial court. Special thanks to Andrew Marra for his contributions to this post. For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News New Jersey Appellate Division Continues its Broad Interpretation of the Charitable Immunity Act (NJ) November 1, 2019 < Back Share to: Earlier this year, the New Jersey Appellate Division, in Green v. Monmouth University, held that a public University was shielded from liability pursuant to the charitable immunity act even though the plaintiff in that case was injured at a for-profit Martina McBride concert hosted at the University. The court held that the concert was in furtherance of the University’s educational mission and that plaintiff was a beneficiary of that mission at the time of her fall. Since that decision, the Appellate Division has continued to broadly interpret the charitable immunity act to provide immunity to nonprofit charitable or educational institutions. An example of this trend was recently provided by the Appellate Division in Gryger v. Perkins Center for the Arts. In that case, the plaintiff fell at a facility leased by the defendant Perkins, which is a non-profit organization dedicated to promoting arts and culture. The plaintiff was not a paying member of the organization and had purchased a ticket to attend a pottery class hosted by the organization. Under New Jersey law, in order to establish immunity, the defendant needed to show that it: (1) was formed for nonprofit purposes; (2) was organized exclusively for religious, charitable or educational purposes; and (3) was promoting such objectives and purposes at the time of the injury to the plaintiff who was a beneficiary of the charitable works. The court held that Perkins was a charitable institution inasmuch as it was not for profit and was dedicated to promoting arts and culture. The court further held that the plaintiff was a beneficiary at the time of the accident since she planned on attending Perkins’ pottery classes. The fact that the plaintiff paid a fee to attend the class and was not a member of Perkins was of no moment. This case is a great illustration of how broadly New Jersey courts continue to interpret the charitable immunity act. Virtually any non-profit entity may potentially be shielded from liability for any accident occurring while a charitable organization is promoting its educational, charitable or religious mission. An exception, however, may be carved out if, for example, a charitable organization leases a facility to conduct a commercial enterprise. Thank you to Mike Noblett for his contribution to this post. Please email Colleen E. Hayes with any questions.   Previous Next Contact

News Lack of Notice Not Excused By Failure to Keep Address Current January 26, 2011 < Back Share to: In SP & S Assoc., LLC v. Insurance Co. of Greater N.Y., the plaintiff-insured did not provide notice of a personal injury action to its insurer until receipt of a motion for a default judgment some five and a half months after service of process on the Secretary of State. The plaintiff did not actually receive a copy of the summons with notice, due to its failure to keep its address currently with the Secretary of State. In reversing the lower court and granting the defendant’s motion to dismiss the declaratory judgment action, the First Department found that the plaintiff-insured failed to notify the defendant-insurer of an occurrence which might result in a claim “as soon as practicable,” as required by the insurance policy. It reasoned that although the plaintiff-insured did not receive a copy of the summons with notice, its failure to update its address with the Secretary of State was not an excuse for noncompliance with the notice requirements of the policy. Thanks to Gabriel Darwick for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00415.htm Previous Next Contact

News WCM Successfully Opposes Defendant’s Motions to Dismiss and Remand (PA) September 25, 2020 < Back Share to: In Harleysville Worcester Insurance Company v. Pediatric Associates of Westmoreland Ltd, WCM Partners Robert Cosgrove and Colleen Hayes successfully defeated defendant Pediatric Assoc. of Westmoreland, Ltd.’s (“PAW”) Motion to Dismiss or, in the Alternative, Remand to State Court. By way of brief background, plaintiff Harleysville Worcester Ins. Co. filed a declaratory judgment action asserting it does not owe PAW defense or indemnity with respect to an underlying state court action as the pertinent policies do not provide coverage. In evaluating PAW’s Motion, the United States District Court for the Western District of Pennsylvania first considered whether the case should be dismissed as to PAW. In doing so, the Court determined Harleysville Worcester Ins. Co. (“Harleysville”) and PAW fundamentally disagree about Harleysville’s obligations under the relevant insurance policies. The Court held the parties’ fundamental disagreement constituted a controversy under the Declaratory Judgment Act, which warranted denial of PAW’s Motion to Dismiss. Next, the Court analyzed PAW’s Motion to Remand in accordance with the standards established by the Court of Appeals for the Third Circuit’s holding in Reifer v. Westport Ins. Corp., 751 F.3d 129 (3d Cir. 2014). As set forth in Reifer, the Court considered the following factors to assess its jurisdiction over the lawsuit: (1) the likelihood that a federal court declaration will resolve the uncertainty of obligation which gave rise to the controversy; (2) the convenience of the parties; (3) the public interest in settlement of the uncertainty of obligation; (4) the availability and relative convenience of other remedies; (5) a general policy of restraint when the same issues are pending in a state court; (6) avoidance of duplicative litigation; (7) prevention of the use of the declaratory action as a method of procedural fencing or as a means to provide another forum in a race for res judicata; and (8) (in the insurance context), an inherent conflict of interest between an insurer's duty to defend in a state court and its attempt to characterize that suit in federal court as falling within the scope of a policy exclusion. See Harleysville Worcester Ins. Co., 2020 WL at *2. Weighing the foregoing 8 factors – with the understanding that the Court may look to other case law or considerations – the Court concluded that judicial economy is best served by retaining jurisdiction over the action. In support of this conclusion, the Court reasoned, inter alia, no underlying state court action related to the heart of the lawsuit existed, a ruling on the action would resolve the issue of whether Harleysville is required to defend or indemnify PAW and the parties already appeared before the Court. In sum, this ruling serves as a reminder of the emphasis the District Courts in the Third Circuit place on the Reifer factors when determining whether to retain jurisdiction or remand to state court. Congratulations to Bob and Colleen on Harleysville Worcester Insurance Company v. Pediatric Associates of Westmoreland Ltd, No. CV 19-1251, 2020 WL 5544413, at *1 (W.D. Pa. Sept. 16, 2020), and thanks to Lauren J. Berenbaum for her contribution to this post. Please contact Vincent F. Terrasi with any questions. Previous Next Contact

News Will the SeaWorld Tragedy Lead to Lawsuits? October 26, 2011 < Back Share to: The recent and tragic death of Dawn Brancheau, an experienced orca trainer, at SeaWorld's Orlando park, has spawned much (and often sensational) news coverage. The thrust of much of the press coverage has been on the general questions of whether orcas, a/k/a killer whales, should ever be held in captivity or allowed to interact for daily shows with humans. The second, and for a legal blawg, the more interesting aspect of the tragedy is whether Tilikum, the whale implicated in the recent attack, has "violent propensities" -- beyond that which should be expected from a "typical" orca. Indeed, it has now come to light that this is the third human fatality that Tilikum has caused (in whole or in part) over the last 20 years. Although, for the moment, Brancheau's family has not expressed any interest in commencing a lawsuit against SeaWorld, given Tilikum's apparent "violent propensities" a lawsuit of some kind by someone seems inevitable -- especially if Tilikum (whom SeaWorld has annouced it will not put down) attacks again. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Attorney Who Failed To Pay Uncooperative Experts Found To Have Breached Contract (NY) April 22, 2022 < Back Share to: Recently, in the Supreme Court, New York County case Tiago v. Trachtman plaintiffs, both psychologists retained to be expert witnesses by the defendant, were awarded summary judgment as to liability under the breach of contract claims only and successful in severing and dismissing the defendant’s counterclaims. Contemporaneously, the Court denied the defendant’s cross-motion for summary judgment. The underlying action in which the plaintiffs were retained experts was a Southern District of Florida class action lawsuit, filed by the defendant, involving claims of special needs children and their family members arising out of alleged injuries the class members suffered during a severe winter storm while aboard a cruise line at sea. The passengers were confined to their cabins between 12 and 13 hours. Plaintiffs prepared reports for 14 of the class action members and delivered those reports to the defendant who refused to pay. Subsequently, the defendant demanded the plaintiff appear for depositions in the Florida action. However, the plaintiffs decided they did not want to sit for multiple depositions when still owed thousands of dollars. The defendant then subpoenaed the plaintiffs who claim they had to hire counsel to respond to the subpoenas. Plaintiffs argued that the defendant did not deny that he did not pay them. In opposition and in support of his own cross-motion for summary judgment, defendant argued that the plaintiffs committed an anticipatory breach of contract of the expert retainer agreements by suddenly imposing time and schedule limitations relative to the tasks requested. With one plaintiff able to work Friday mornings and early afternoons and the other on Saturdays, Defendant claimed such limitations were additional terms separate from the retainer agreement, thus, constituting anticipatory breach of contract and him not having to pay. Analyzing the facts under various theories of contract law, the Court summarized that although the defendant was likely displeased with the plaintiffs for working on certain days and refusing to show for depositions, he could have attempted to cancel the contract with the plaintiffs when he learned about their time constraints but did not. Instead, he let them continue to work on the case, and it was not clear whether the limitations resulted in the plaintiffs failing to do anything under the contract. Notwithstanding that the defendant may have had sanctions imposed upon him in the Florida action and had to retain a new expert, such did not relieve him of having to pay the plaintiffs for the work performed. If the defendant had problems with the Florida case, missed deadlines, or did not communicate effectively with the plaintiffs, not paying the plaintiffs was not supported by the facts or the law. This case illustrates, beyond affirming that contract is king and attorneys having to pay retained experts for work performed, that a handling attorney, when it comes to Court deadlines or directives, cannot shift culpability for delays to experts working on the case. It is paramount for the attorney to know their experts, communicate all expectations with them effectively at the outset of the relationship, and to monitor the progress making timely adjustments if necessary. Please contact John Diffley with any questions. Previous Next Contact

News Health Club Need Not Worry If Spin Class Is “All the Rage” January 8, 2009 < Back Share to: In Sugarman v. Equinox Holdings, Inc., a New York County court dismissed an action brought by a health club member against Equinox gym. Sugarman alleged that Equinox was liable for the actions of a fellow gym-goer who in a fit of “spin rage,” threw Sugarman, who was still perched on his spin bike, into a plaster wall. Sugarman further argued that Equinox employees should have anticipated the tortious conduct and diffused the underlying verbal argument. In granting the motion to dismiss, the court held that the fellow rider's actions were not foreseeable as Equinox had no notice of his propensity to do harm because he had not exhibited any known pattern of criminal behavior. The court further held that the verbal attack on Sugarman, absent any concurrent physical actions, was not sufficient to put Equinox on notice of any possible physical assault. http://www.plol.org/Pages/Login.aspx?d=WLPNXQ%2b8ifVM%2fO7CFbNF8A%3d%3d&l=Cases Previous Next Contact

News Statute of Limitations Sours Wine Collector's Lawsuit (NY) October 18, 2012 < Back Share to: In 1988, wine collector William Koch purchased $400K of wine under the guise that it was from Thomas Jefferson’s personal collection. Long after learning that was not true, in 2010, he filed suit, alleging civil RICO conspiracy and common law fraud claims. The Second Circuit ruled that the statute of limitations had passed, and thus affirmed the trial court’s dismissal of the suit. The lynchpin of the Court’s decision was that the standard for both claims hinged on “inquiry notice,” as opposed to actual notice. In November and December of 1988, Koch purchased the bottles through wine selling intermediaries. Christie’s advertised bottles from the same cache as “assumed to have been the property of Thomas Jefferson,” thus bolstering Koch’s belief that the wine was authentic. It was the early 1990’s when Koch first read articles casting doubt on the authenticity of the Thomas Jefferson wine. The reports were enough to incite Koch to hire a group of attorneys in 1993 to investigate these rumors. He sought further legal advice in 1993 and 1995, and by 2005, Koch had seen an official report from Monticello declaring that it was doubtful the wine actually belonged to Jefferson. Despite years of warning signs, Koch did not file suit against Christie’s until March 30, 2010. The District Court ruled that the statute of limitations for RICO cases begins to run as soon as there are warnings that should have prompted inquiry into a potential injury. A similar rule applies to New York common law fraud claims. The appellate court affirmed the trial court’s decision in respect of both claims, holding that Koch had reasonable inquiry notice at least 10 years prior to filing suit. Finally, the Court ruled that Koch could not argue fraudulent concealment by Christie’s because Koch did not use reasonable diligence in pursuing discovery of his legal injury, a key element of this claim. Thanks to Thalia Staikos for her contribution to this post. If you would like further information, please write to Mike Bono at mbono@wcmlaw.com       Previous Next Contact