News Not All Falls From A Height Trigger NY Labor Law 240(1) Liability August 18, 2009 < Back Share to: In Rozmyslowicz v. Keyspan Generation, LLC, the plaintiff, an employee of an asbestos removal company, was assigned to construct a wooden tunnel through which workers would pass on their way to a “mobile decontamination unit.” While trying to climb atop the decontamination unit, the plaintiff fell and was injured. He brought an action based upon a violation of Labor Law § 240(1), for failure to provide proper safety devices. At trial, the jury concluded that the defendant had not failed to provide the plaintiff with proper protection from height-related risks. After trial, the plaintiff moved to set aside the verdict as against the weight of the evidence. His motion was denied at the trial level and again on appeal. The appellate court held that the jury could have rationally and fairly concluded that the plaintiff's assigned task neither required, nor contemplated, that he climb onto the roof of the decontamination unit, and, further, that the equipment he was provided was adequate to the task he was assigned. Thanks to Cheryl Fuchs for her contribution to this post. http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2009/D22240.pdf Previous Next Contact

News Readily Observable (NY) September 23, 2022 < Back Share to: In a recent decision, Williams v. E And R Jamaica Food Corp., the Second Department held that " a condition is open and obvious if it is ‘readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident." The Appellate Court granted defendant’s appeal in matter where plaintiff sustained personal injuries as a result of tripping and falling on a rolled up mat in the supermarket. The Appellate Court held that the defendant established entitlement to summary judgment by submitting evidence that the rolled-up mat was known to plaintiff prior to the accident as it was open and obvious, and thus was not inherently dangerous. Thanks to Marium Sulaiman for her assistance with this article. Should you have any questions, contact Tom Bracken. Previous Next Contact

News Family Of Fallen Firefighter Brings Suit For Fire At Deutsche Bank Building February 14, 2008 < Back Share to: Barbara Beddia Crocco, the sister of Robert Beddia, one of the two firefighters killed in the former Deutsche Bank building in lower Manhattan last August commenced a lawsuit against the building owner, the Lower Manhattan Development Corporation, and several contracting companies that worked on site. The claims are that the defendants created or were aware of the dangerous conditions that existed in the building, including dismantled fire connections, that caused the death of Mr. Beddia. Notably, Ms. Crocco did not sue the City of New York of The Fire Department of New York. http://www.nytimes.com/2008/02/14/nyregion/14deutsche.html?_r=1&ref=nyregion&oref=slogin Previous Next Contact

News New Jersey PIP/UM coverage for passenger riding in stolen vehicle January 4, 2013 < Back Share to: On January 2, 2008 , the NJ Appellate Division decided the case of Hardy v. Liberty Mutual holding that PIP and UM coverage could be available to a passenger in a stolen vehicle who claimed that he was unaware that the vehicle was stolen. The plaintiff was a 14 year old boy who was seriously injured while riding as a rear seat passenger in a stolen vehicle. He sought PIP and UM benefits as a family member under his grandmothers automobile insurance policy with Liberty Mutual. Liberty Mutual denied PIP coverage based on an exclusion for any insured occupying an auto without the owners permission and denied UM coverage under an exclusion for bodily injury to an insured while using a vehicle without a reasonable belief that he is entitled to do so. A suit to compel benefits was filed and the trial court granted summary judgment to Liberty Mutual. The Appellate Division reversed and remanded the case for a trial as to whether the plaintiff had a "reasonable belief" that he was entitled to occupy the car. The Appellate Division found that , "an exclusion from coverage of persons who did not know or have reason to know that they were riding in a car that was being operated without the permission of the car's owner would be unrealistic and not objectively reasonable". http://www.judiciary.state.nj.us/opinions/a2153-06.pdf Previous Next Contact

News Preexisting Conditions Discoverable When Medical Condition Placed in Controversy (NY) August 15, 2013 < Back Share to: In Walters v. Sallah, the First Department recognized the significance of obtaining a plaintiff’s pre-accident medical records when a plaintiff places his or her medical condition in controversy. Walters sustained injuries in a car accident and claimed that he was unable to perform substantially all of his usual daily functions for at least 90 out of the first 180 days following the accident. The defendants moved to compel Walters to provide authorizations to obtain his medical records pertaining to a pre-existing arthritic condition, as well as disability records from the Social Security Administration. The defendants argued that these pre-existing conditions could be the cause of Walter’s inability to perform his usual daily activities. In reversing the lower court’s decision, the First Department ruled that the defendants met their burden of showing that the requested records were relevant to a physical condition that Walters placed in controversy. It was left, however, to the lower court’s discretion to limit the discovery to reasonable parameters, including time frame and relevant body parts. Thus, while such discovery is clearly relevant and discoverable, defendants are not generally entitled to an unfiltered fishing expedition. Special thanks to Lora Gleicher for her contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News Explicit Insurance and Lease Language Govern Ruling on Primary or Excess Coverage (NJ) December 21, 2018 < Back Share to: In Lopez v. Palin Enterprises, Associated, the New Jersey Appellate Division reversed a trial court’s decision that a tenant’s insurance policy provided coverage to the landlord as an additional insured that was excess over the landlord’s own insurance policy where the lease did not require the coverage to be primary. Palin Enterprises, Associated, owned a commercial property and leased part of it to Agile Trade-Show Furnishings, Inc. An Agile Trade-Show employee became injured while using a freight elevator inside the leased premises. Palin, the building owner, tendered the defense to the tenant’s insurer: Wausau Insurance (Wausau). The owner argued it was entitled to primary insurance coverage as an additional insured under the tenant’s policy. The trial court agreed and ordered Wausau to provide primary insurance to the property owner. On appeal, Wausau argued that the “other insurance” language in its policy meant that it provided coverage in excess of the primary insurance policy issued by the property owner’s insurer: Greater New York Mutual Insurance Company. Specifically, the Wausau policy stated that it “shall be excess over any other insurance available to the additional insured whether such insurance is on an excess, contingent, or primary basis, unless [] obligated under a written agreement to provide liability insurance [] on any other basis.” According to Wausau, this policy language supported its position that its policy applied to excess coverage only. The New Jersey Appellate Division agreed with Wausau and reversed the trial court’s order. After conducting a review of the insurance policy, the appellate court found that Agile Trade-Show did not have a contractual obligation to obtain primary insurance for the property owner. Since the lease agreement was a “written agreement,” it could require its tenant to procure primary liability insurance. The lease agreement here, however, did not specify the type of coverage required under its terms. Because the written lease agreement did not specify that the tenant was required to obtain primary coverage, the property owner was afforded excess coverage. Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Look Out Below–How Much Height Differential Is Required For A Falling Object Claim Under Labor Law 240(1)? (NY) October 8, 2021 < Back Share to: When a lawsuit alleges that a plaintiff’s injuries are caused by an object falling from the same relative height as plaintiff, does the claim satisfy the elevation hazard requirements of Labor Law §240(1)? Liability under Labor Law §240(1) does not automatically apply just because an object fell and injured a worker. The law requires that a plaintiff prove that at the time the object fell, it was being hoisted or secured or “required securing for the purposes of the undertaking.” There is no bright line minimum height differential that determines whether an elevation hazard exits, but New York courts will consider the weight of the object and the amount of force it is capable of generating, even from a short descent. In Melendez v. Brown-United, Inc., 2020 N.Y. Slip Op 50832(U) (July 2020 N.Y. Cnty), plaintiff was erecting a scaffold using 15ft long, 40-pound pipes to form the base of the scaffold. Immediately prior to the accident, plaintiff brought the pipe and lifted it into the base. Believing that another worker had tightened the pipe, plaintiff walked away and was hit in the head, neck, and shoulder by the pipe. The defendants moved for summary judgment arguing, among other things, that Labor Law §240(1) did not apply because the injury was not the result of an elevation-related risk. The court disagreed, citing a Court of Appeals case which held that liability under Labor Law §240(1) is not precluded where the injured worker and the base of the falling object are at the same level. See Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 10 (2011). The court held that defendants failed to establish that plaintiff’s work did not subject him to a “physically significant elevation differential.” Given the height and weight of the pipe that hit plaintiff, the court could not conclude that the elevation differential was “de minimis.” The court also held that the defendants failed to prove that the injury was not the direct consequence of their failure to provide adequate protection against the risk of injury or that other protective devices were not required. The Melendez decision reinforces the rule that a falling object claim under Labor Law §240(1) does not always require a significant height differential. New York courts will examine the facts to determine whether the law applies in a case where a falling object only travels a short distance. Thank you to Gabriella Scarmato for her contribution to this post. Please email Andrew Gibbs with any questions. Previous Next Contact

News Admissibility of Excited Utterance A Factual Determination Made by the Court. September 10, 2012 < Back Share to: Generally the jury decides issues of fact. However, in Dalli v. McGreen, the court stated that admissibility of an excited utterance is "made in the first instance by the trial court." There, the decedent was allegedly injured when he slipped and fell on ice while backing away from defendants' dog. Prior to providing any sworn testimony, the decedent died of unrelated causes. Defendants moved for summary judgment arguing that plaintiff would be unable to establish a case because the only evidence was inadmissible hearsay from plaintiff derived from a telephone call from the decedent (her husband) just after the fall. In that call, the decedent told plaintiff, "he was trying to make a delivery and he was approached by a dog that he wasn't sure was friendly or not, he was backing up, misstepped on the ice and fell." In its evaluation, the court noted, "An out-of-court statement is properly admissible under the excited utterance exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication." The court stated that it was up to the court to determine whether at the time the statement was made, the declarant was under the stress of the excitement. Among the factors considered was the period of time between the startling event and the out-of-court statement, but there was no definite or fixed period of time within which the declaration must have been made. Since the decedent called plaintiff immediately after the accident, the court found that the statement was admissible under the excited utterance exception. That said, even allowing for the admission of the excited utterance, the decedent's statement that he "misstepped" while backing up did not identify where the accident occurred or the cause, and the decedent's statement that he was unsure if the dog was friendly or not mitigated against a finding that the dog had vicious propensities. As such, the court found that even assuming that decedent's statement was admissible, defendants demonstrated an unrebutted entitlement to judgment as a matter of law dismissing the action, as plaintiff could not establish their liability. http://www.nycourts.gov/reporter/3dseries/2012/2012_51594.htm If you have any questions about this post feel free to contact Cheryl at cfuchs@wcmlaw.com Previous Next Contact

News Scalding Hot Coffee Obviously No Cause For Claim (PA) April 13, 2016 < Back Share to: A patron enters a convenience store. She brews a cup of cappuccino at a self-serve machine and properly covers it with a lid. Wallet in hand, she grabs the cup of hot cappuccino and walks to the refrigerated cooler to make further selections. She extracts a Gatorade and a bottle of iced Starbucks coffee. She tucks the hot coffee between her forearm and chest while cradling the ice coffee and Gatorade and holding her wallet as she bends down to pick a pack of gum. What could go wrong? Of course, as she reaches for the gum, the cappuccino slips and scalds her arm and breast. In Soohey v. Sheetz, Inc.., the plaintiff alleged that the store was liable for her mishap for failing to provide a shopping basket, for “making customers carry hot beverages,” and for failing to warn of the risks inherent in carrying a hot beverage. She claimed that the store had a duty to her to protect her from danger. In summarily dismissing the claim, the court disagreed. While a landowner owes a duty to use reasonable care to protect against a known danger that a user might not appreciate, a store is not an insurer of its patrons for conditions whose danger is obvious. Both the trial court and affirming appellate court found that the lack of shopping baskets was clearly known and obvious and the plaintiff could easily have avoided harm by taking reasonable care, by not attempting to carry too many items, and certainly by not tucking a hot cup of coffee between her forearm and breast. These were all open and obvious conditions. Thanks to Erin Connolly for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Federal Rule of Evidence 702 Standard of Care for Medical Experts Requires Sufficient, Supported, and Reliable Expert Testimony January 13, 2023 < Back Share to: In the recent case of M.D.R. by Rivera v. Temple University Hospital, The United States District Court for the Eastern District of Pennsylvania found that under Federal Rule of Evidence 702, for a plaintiff to prove that a hospital is liable for medical negligence, the plaintiff cannot merely provide expert testimony that shows a deviation from that expert’s subjective perception of the relevant standard of care. Rather, plaintiffs must provide sufficient and reliable expert testimony as to what the relevant standard of care actually is. In M.D.R., plaintiff, through her mother, sued Temple University Hospital (“TUH”), alleging medical malpractice resulting in a birth-related injury to her arm. TUH moved for summary judgment, arguing that plaintiff’s experts’ opinions would be inadmissible at trial because they failed to satisfy the Daubert standard on reliability. Plaintiff’s experts both opined that M.D.R.’s brachial plexus injury could only have occurred “as a direct result of the obstetrician's application of excessive “traction” on the baby's head and cannot be caused by the natural forces of labor.” Accordingly, the experts opined that the existence of a brachial plexus injury was sufficient in proving that the nurses and obstetricians had breached the standard of care. Plaintiff’s experts both reached this opinion however without opining on what that applicable standard of care was in this situation. The court found that plaintiff’s experts’ opinions assumed facts not in evidence and were directly contradictory to almost all current and available scientific literature on the subject, including literature cited by the experts themselves. Moreover, the court found that as a matter of law, medical experts must establish, in a Daubert-satisfactory manner, what the standard of care is for a given case, and how that standard was or was not satisfied, as opposed to merely opining that the existence of a certain injury was sufficient proof to demonstrate the breach of an abstract and undefined standard of care. As such the court deemed M.D.R.’s expert opinions unreliable and granted TUH’s motion for summary judgment. M.D.R. is a victory for defendants in medical malpractice suits because it reinforces the role of judges as active gatekeepers in determining whether expert testimony is reliable and therefore admissible. The case therefore limits the ability of plaintiffs to use so-called expert testimony, not truly supported by the scientific community, to satisfy the expert requirement in medical malpractice suits Thanks to Stephen Kerstein for his assistance with this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News NJ App. Div Interprets &quot;Control Of Affliliate&quot; In Deemer Statute. August 30, 2010 < Back Share to: In Cupido v. Perez, the plaintiff was a resident of Pa. involved in a motor vehicle accident in NJ. Plaintiff selected the full tort option under his personal automobile insurance policy giving him the right to sue for any injuries sustained in a motor vehicle accident. Plaintiff's carrier, Nationwide, was not authorized to transact any motor vehicle insurance business in NJ; however, it controlled 4 affiliated companies which were authorized to transact commercial motor vehicle insurance but not private passenger insurance business in NJ. The issue on appeal was whether the NJ Deemer Statute , N.J.S.A. 17 :28-1.4 applied based on the control of an affiliate company authorized to transact commercial motor vehicle insurance business in NJ. The Appellate Division found that the Deemer Statute applied, and therefore that the plaintiff was subject to the NJ verbal threshold limitations on his right to sue for injuries. Please contact Robert Ball with any questions. http://www.judiciary.state.nj.us/opinions/a4557-08.pdf Previous Next Contact

News Litigation Privilege Pierced in Legal Malpractice Action (NJ) November 15, 2012 < Back Share to: The litigation privilege generally shields individuals involved in a litigation from liability for any communication made in connection with that litigation, as long as the statements are made in connection or logical relation to the litigation. But the New Jersey courts recently handed down a decision that changes the liability shield of the litigation privilege in legal malpractice actions where counsel violated rules of professional conduct. In Buchanan v. Leonard, the Appellate Division examined a interesting "legal-malpractice-within-legal-malpractice" suit. Buchanan, an attorney, had been sued for allegedly mishandling a bankruptcy petition on behalf of his clients, the Kerrs. The Kerrs alleged that as a result of the mishandling of their bankruptcy, they subsequently lost their home as well as their business property. Leonard was then hired by Buchanan’s professional liability insurance carrier to defend Buchanan in the underlying malpractice lawsuit, and Leonard discovered a letter where Buchanan agreed to file a bankruptcy petition on behalf of the Kerrs that contained misrepresentations of fact, and the Kerrs agreed to indemnify Buchanan for any resulting sanctions. Leonard later wrote a settlement memorandum to Buchanan’s insurer recommending settlement before trial because if the memorandum was revealed at trial, Buchanan could face professional disciplinary charges. Shortly after receiving the settlement memorandum, and a week before the trial, the insurer notified Buchanan that it was withdrawing its coverage and would not defend the lawsuit on Buchanan’s behalf, citing an exclusion in the policy for “dishonest, fraudulent, criminal or malicious acts or omissions.” The insurer also filed a declaratory judgment action against Buchanan seeking a determination that it was not required to provide coverage to Buchanan in the legal malpractice suit. The declaratory judgment action was decided in favor of Buchanan. Buchanan then filed a complaint against Leonard and his law firm, alleging legal malpractice, negligent supervision of Leonard, breach of contract, breach of fiduciary duty, tortuous interference with contract, defamation, and unjust enrichment. After filing an answer, but before the close of discovery, cross-motions for summary judgment were filed by the parties. Buchanan sought partial summary judgment on his legal malpractice claim. Leonard and his law firm sought summary judgment on all claims in the complaint, citing the litigation privilege and lack of expert testimony as to the legal malpractice claims, and a statute of limitations defense as to the defamation count. Ultimately, the trial court granted Leonard’s motion for summary judgment, and denied Buchanan’s motion. The judge agreed that the defamation claim was time-barred because it had not been filed within one year of the alleged defamatory statements (the settlement memorandum), and that the legal malpractice claims failed because Buchanan had not submitted an expert report in support of that claim. The judge also determined that all of Buchanan’s claims failed as a matter of law because they were based on the settlement memorandum, which the trial court held was subject to the litigation privilege. On review, the Appellate Division affirmed the grant of summary judgment as to the defamation claim, but reversed as to the legal malpractice claims. Because the litigation privilege issue was one of first impression, the Appellate Division decided to follow the example set by the California courts, and deny litigation privilege as a shield from liability as between an attorney and a client in a malpractice matter. The court stated that because the litigation privilege does not protect attorneys from discipline for violating the New Jersey Rules of Professional Conduct, “[i]t therefore follows that the litigation privilege does not protect an attorney from a claim by his or her client based upon statements the attorney made in the course of a judicial proceeding where, as in this case, it is alleged that the attorney breached his duty to the client by failing to adhere to accepted standards of legal practice.” Additionally, because discovery had not yet closed in this matter prior to the filing of the cross-motions for summary judgment, and because Buchanan had already retained a legal malpractice expert, the Appellate Division remanded the matter to the trial court with instructions to allow Buchanan the opportunity to submit his expert report. This case underscores the care that must be taken by defense counsel in the tripartite relationship. Although an attorney must keep his insurance client apprised of the facts of the case, revealing confidential facts that place his legal client's coverage in jeopardy can lead to a host of troubles. Thanks to Christina Emerson for her contribution to this post. If you would like more information please write to mbono@wcmlaw.com .       Previous Next Contact