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

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