News NJ Deemer Statute Offers No Protection To Out of State Defendant Driver December 22, 2009 < Back Share to: The evolution of transportation from the horse and buggy to the automobile did more than revolutionize our mode of travel. It fueled and accelerated bodily injury claims as the demolition derbies continue on our public streets and highways. State legislatures have attempted to deal with the crush of auto-related litigation by passing varioius "no fault" schemes designed to reduce the number of lawsuits for minor, soft tissue injuries in return for the prompt payments of the injured party's medical bills under PIP. New Jersey is no different. Its latest version of a tort limitation was modeled on the New York statute that required a "serious injury" as a condition to suit. Known informally as the "verbal threshold," the New Jersey statute bars suit for injuries sustained in an automobile accident unless the plaintiff falls into at least one of six categories of injury. Unlike New York's statute, the policyholder makes an election at the time he purchases an auto policy: in exchange for a higher premium, he is not subject to the verbal threshold. Most policyholders select the limitation to suit and pay a lower premium. What happens if an out of state driver gets in an auto accident in New Jersey? What if both drivers are from out of state? Is the plaintiff subject to New Jersey's verbal threshold in either situation? In Zalilowicz v. Kelsey, both plaintiff and defendant were out of state drivers from Pennslyvania. Under the New Jersey No Fault scheme, a plaintiff is subject to the tort limitation unless a specific selection is made when he purchases his policy. However, the Deemer statute provides that an out of state driver is presumed to have selected the tort limitation if his insurer is authorized to underwrite insurance in the state of New Jersey. Simple enough if the plaintiff has an accident with a New Jersey driver. What about if both the plaintiff and defendant are from out of state? The New Jersey Supreme Court held that the defendant does not get the benefit of the limitation-on-lawsuit where the defendant is from out of state and his insurer is not admitted in New Jersey. The Supreme Court reasoned that since such a nonresident driver is not eligible for PIP/No Fault benefits because his insurer is not admitted in New Jersey -- and not subject to the Deemer Statute-- then he does not get the benefit of the tort limitation. According to the court, if the defendant's insurer is not part of the No Fault scheme for PIP purposes, he's outside the statute for all purposes including the ability to use the tort threshold as a defense. Of interest, the Supreme Court almost invited the legislature to close this loophole and cited language that would achieve that goal. If you have any questions about this post, please email Paul at pclark@wcmlaw.com http://www.judiciary.state.nj.us/opinions/supreme/A8708ZabilowiczvKelsey.pdf Previous Next Contact

News Cheerleader Assumed Risk of Injury February 6, 2009 < Back Share to: The Fourth Department’s recent February 2009 decision in Williams v. Clinton Central School District, upholds New York’s long-standing assumption of risk doctrine. In this case, Williams, a high school senior, commenced suit against her school district for injuries sustained while performing a cheerleading stunt. She alleged that the school unreasonably increased the risk of injury by failing to provide a matted surface during practice. In upholding the dismissal of plaintiff’s complaint, the Fourth Department held that although the school district was under a duty to exercise reasonable care to protect student athletes, the risk of performing cheerleading stunts on a non-matted surface was open, obvious, and inherent in plaintiff’s participation in the activity. Thanks to Lora Gleicher for her contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_00742.htm Previous Next Contact

News No Litigation Hold? No Records? Then Sanctions and Spoliation in NJ. October 3, 2011 < Back Share to: E-discovery -- a phrase certain to strike fear in the heart of any insurance company or claims professional! Yet, notwithstanding the fear factor, we have seen many clients and insurers (none of which, of course, were represented by us) ignore or pay scant attention to the litigation hold requirement. The company that does so, does so at its own peril as this recent district court opinion makes clear. The failure to properly impose a litigation hold and the resultant negligent destruction of records subjects the destroying party to sanctions and spoliation, i.e. an adverse inference charge. Strong medicine indeed. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News A New York Lloyd's? July 8, 2008 < Back Share to: Details are sketchy and many issues must still be worked out, but the recreation of the New York Insurance Exchange is in the works. If all goes according to plan, the Exchange will re-open in the next 18 months. The question is -- will pubs and coffee houses follow? http://www.insurancejournal.com/news/national/2008/07/08/91689.htm?print=1 Previous Next Contact

News City Defendants Win Summary Judgment on Trivial Defect Defense (NY) September 10, 2020 < Back Share to: In Acevedo v. City of Yonkers, the infant plaintiff was allegedly injured when he was playing basketball in the street in front of his home, located in Yonkers, and tripped and fell over a water valve cap that was recessed into the street. The family brought suit against the City of Yonkers. The defendants moved for summary judgment dismissing contending that they did not receive prior written notice of the condition alleged as required by section 24–11 of the Charter of the City of Yonkers, and that the defect alleged was trivial and therefore not actionable as a matter of law. The Supreme Court granted that branch of the defendants' motion which was for summary judgment dismissing the complaint, finding that the defendants established that they had not received prior written notice of the defect alleged. The plaintiffs appeal. The Appellate Division Second Department found that the defendants should have been granted summary judgement; however, due to the fact the defect was trivial and not on notice. The Court held “In determining whether a defect is trivial, the court must examine all of the facts presented, including the ‘width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury.’ “A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses.” Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting, the area of loss did not possess the characteristics of a trap or nuisance, and therefore, was not actionable. The Appellate Court did not discuss the notice portion of defendants’ brief. The granting of summary judgment on the defense of trivial defect is rare as Courts find that triviality is a question of fact for the juror; however, the dimensions of the area where the infant plaintiff fell, along with photographs and the testimony of the plaintiffs all combined for the Appellate Court to rule that the defect was indeed trivial. Thanks to Paul Vitale for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News No Link Between Auto Accident and Early Cesarean Section November 29, 2011 < Back Share to: In Johnson v. The City of New York, plaintiff was 12 days pregnant when a police vehicle backed into her as she walked across a street in Manhattan. Plaintiff alleged that as a result of the accident, she sustained a fractured right tibia. In addition, she alleged that the accident caused complications in her pregnancy, such as vaginal bleeding and placental abruption, resulting in plaintiff undergoing an emergency cesarean section at 27 weeks (just over 6 months). The court found that, based upon the emergency room records on the date of the accident, plaintiff demonstrated a connection between the accident and her leg fracture. As to the pregnancy complications, the medical records did not contain any specific link to the leg injury. Rather, "preexisting gynecological issues" were cited as the cause for at least some of plaintiff's pregnancy difficulties. As such, the court ruled that there was no support to plaintiff's argument that the auto accident caused any of the subsequent complications to her pregnancy. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08458.htm Thanks to Brian Gibbons for his contribution to this post. Previous Next Contact

News Shock Induced Fall Shocking Result for Labor Law § 240(1) (NY) January 21, 2016 < Back Share to: The First Department has again held that plaintiffs who fall from a ladder after receiving an electric shock may be entitled to summary judgment on their Labor Law § 240(1) claims, even if no party disputes that the ladder functioned properly and was not defective. In Nazario v 222 Broadway, LLC , plaintiff was using an A-frame ladder to remove old light fixtures. The power was supposed to be cut off, and plaintiff’s testing device indicated that there was no power running to the fixture on which he was working. Unfortunately, there was still a live current running to the light, and plaintiff was shocked. He fell from the ladder, which then fell on top of him. The trial court dismissed plaintiff’s Labor Law § 240(1) claim on summary judgment after determining that plaintiff submitted no evidence concerning the worthiness of the ladder. The First Department reversed the trial court’s ruling and granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim, holding that plaintiff had established a prima facie case that his ladder provided him with inadequate protection. The court concluded that because the ladder was not secured to the ground in such a way to prevent it from falling over after plaintiff was shocked, the unsecured ladder was a violation of the Labor Law and the proximate cause of plaintiff’s injuries. Justice Tom’s concurring opinion disagreed with the majority’s reasoning, while admitting that he was obligated by First Department precedent to concur with the overall ruling. Justice Tom expressed concern with developing First Department case law, which has held that plaintiffs who establish that a ladder was unable to keep them from falling after receiving an electric shock have also established that the ladder was a proximate cause of their injuries. Justice Tom believed that this line of cases has departed from the Court of Appeals’ ruling in Blake v. Neighborhood Hous. Servs. Of N.Y. City (a critical case for defending Labor Law § 240(1) claims), and created an unnecessary split with the remaining Departments, all of whom have held that falling from an A-frame ladder after receiving an electric shock, by itself, is insufficient to establish liability as a matter of law. Justice Tom counseled the need for additional evidence, such as whether the ladder was defective or whether additional safety devices were necessary, before granting summary judgment. Until there is further guidance on this matter from the Court of Appeals, it may now be necessary to provide those working with electrical systems with safety measures to prevent them or their ladders from falling in the event they receive an electric shock. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News No Notice of Defect in Escalator Defeats Plaintiff's Claim May 17, 2011 < Back Share to: Plaintiff alleged that she sustained personal injuries when the escalator she was riding suddenly began to shake, causing her to fall to the ground. Defendants, owners and lessees of the premises, argued that they had no actual or constructive notice that anything was wrong with the escalator, and were therefore entitled to summary judgment. The First Department agreed, noting that the plaintiff failed to raise a triable issue of fact as to defendants' notice of any defect. Further, plaintiff testified that she rode this particular escalator often, knew of no complaints regarding its operation, and saw no obvious and apparent problems with the escalator prior to her fall. The opinion was silent as to whether plaintiff had also brought suit against the manufacturer or installer of the allegedly defective escalator, but the Court granted the respective summary judgment motions of the lessees and owners of the premises. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03967.htm Previous Next Contact

News Booming Chinese Art Market. September 7, 2011 < Back Share to: This will come as no surprise to fine arts professionals, but the Chinese art market remains hot. This interesting NYT's article explores that phenomenon. For more information about this post or WCM's fine art practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Notice To Wrong Town Official Of Defect Is Not Proper Notice To Town April 16, 2009 < Back Share to: In Gorman v. Town of Huntington, the plaintiff s commenced a personal injury action against the town due to an alleged uneven sidewalk in front of a local church. Four months prior to the plaintiff's accident, the pastor of the church sent a written complaint to the town's Department of Engineering Services, which is responsible for sidewalks, complaining of the condition and requesting a repair of the sidewalk. The Court of Appeals reversed the Appellate Division ruling and held that the Town of Huntington was entitled to summary judgment because the town did not receive prior written notice pursuant to the specific language of a local statute pertaining to notice The local statute designated the Town Clerk or the Town Superintendent of Highways as proper receipts of written notice of sidewalks defects. By statute, notice to a department that was not enumerated in the statute would invalidate the notice. Since the Department of Engineering Services was not a statutory designess, notice to the department was deemed insignificant. Thanks to Maju Varghese for his contribution to this submission http://www.courts.state.ny.us/reporter/3dseries/2009/2009_02648.htm Previous Next Contact

News Under PA Premises Law, to be an Invitee Requires an Invitation September 19, 2018 < Back Share to: The Pennsylvania Superior Court recently affirmed a trial court’s defense verdict after a resident in a townhome community brought an action against the homeowners association after she tripped and fell on branches located on the steps to a common area. In Hackett v. Indian Kings Residents Association, 2018 PA Super 240, No. 3600 EDA 2017, Hackett appealed the jury verdict that declared IKRA was not negligent following a two-day trial. Hackett claimed that, in January 2013, she fell on branches that were on the steps of a common area leading to her townhouse in the Indian King residential community, causing her to undergo three surgeries over the next two years. The jury returned a verdict of “no negligence” on behalf of IKRA. On appeal, Hackett raised the issue that the trial court erred in charging the jury that she was a licensee over her objection and assertion that she was an invitee with regard to the common area. The Superior Court began its opinion by explaining the fundamental principle under tort law, that, in order for liability to be imposed upon a defendant, the plaintiff must first establish the presence of a duty incumbent on the defendant. Pennsylvania, in adopting the Restatement (Second) of Tort’s approach, has established that a landowner’s duty toward a third party is dependent upon whether the third party is a trespasser, licensee or invitee. Because Hackett was a resident of the residential community, neither party argued that she was a trespasser in this scenario. Therefore, the court analyzed the difference between the designation as a “licensee” versus a “invitee.” A licensee is a person who is privileged to enter or remain on the land by virtue of the landowner’s consent – the entrant is there for her own purposes and the landowner has no interest in the third party’s entrance onto the land. Essentially, a licensee is present on the property by virtue of the permission of the landowner. An invitee on the other hand, is basically divided into two sub-categories – a business invitee or a public invitee. A business invitee in one who is invited to enter or remain on the land for a purpose directly or indirectly connected to the business dealings of the landowner. A public invitee is one who is invited to enter or remain on the land as a member of the public for a purpose for which the land is held open to the public by the landowner. Hackett argued that she was an invitee because IKRA’s is property manager who is responsible for keeping the common areas safely maintained. Thus, her payment of maintenance fees to IKRA rendered her an invitee. But the Superior Court concluded that Hackett was a licensee when she entered the common area. First, the court noted that Hackett was not a business invitee who entered the common area for the purpose of conducting business with IKRA. Second, the court determined that Hackett was not a public invitee and in so doing the court articulated the distinction between permission and invitation which helps to highlight the difference between licensee and invitee. The court noted that permission is different (and lesser) than invitation in this context – an invitation is conduct which justifies others in believing that the landowner desires the entrant to enter the land, whereas permission is conduct justifying others in believing that the landowner is willing that the entrant may enter the land if the entrant desires to do so. While the line between invitation and permission may seem like a fine one, the court explained that mere permission is sufficient to make a visitor a licensee, however it is not sufficient to make the visitor an invitee. The court noted that IKRA granted all tenants permission to enter the common area as they pleased, however nothing in the tenants’ lease agreements could be interpreted as a specific invitation to use the common area. Furthermore, the court stated that no particular fees or dues were paid by the residents in order to enable them to use the common area. Ultimately, when Hackett fell, she was in the common area because she had longstanding permission by IKRA to come and go as she pleased; but she was not present in the common area by virtue of any invitation or specific purpose connected to IKRA. Therefore, she was properly designated as a licensee and the trial court verdict was affirmed. Thanks to Greg Herrold for his contribution to this post. Please contact Brian Gibbons (on Twitter @bgibbons35) with any questions. Previous Next Contact

Pablo O. Madriz Counsel New York pmadriz@wcmlaw.com (332) 345-4094 Professional Experience Pablo represents clients in construction and general liability matters in New York State courts. He manages all phases of the litigation process, including pleadings, discovery, mediation, and settlement negotiations. Prior to practicing in New York, Pablo litigated general and products liability cases in California, gaining broad experience across multiple jurisdictions. Pablo earned his J.D. from the Benjamin N. Cardozo School of Law, where he was an active member of the Moot Court Honor Society. Outside the office, he enjoys long runs through the city. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education · JD, Benjamin N. Cardozo School of Law · BA, Santa Clara University Bar Admissions New York California Court Admissions Southern District of New York