News Manufacturer Avoids Products Liability Where Third Party Altered Products (NY) April 22, 2022 < Back Share to: In a products liability action, merely claiming failure to warn does not amount to the standard necessary to prove proximate cause. The New York Appellate Division, Second Department, recently addressed this issue in John Kosta v. WDF, Inc. In that case, defendant Serpentix Conveyor Corporation manufactured three conveyor machines to be placed in a New York City Department of Environmental Protection facility, which was undergoing renovations by defendant WDF, Inc. After the conveyors were delivered, WDF added caster wheels to them so that they could be moved. It was during this move that plaintiff suffered fatal injuries. In New York, a manufacturer who places a defective product into the stream of commerce may be liable for the injuries caused thereby. However, a manufacturer who has designed a safe product is not liable for substantial modifications or alterations made by a third party which renders the product defective or unsafe. In moving for summary judgment, Serpentix established that when the conveyors were delivered, they were required to be affixed to the ground. Serpentix also established that upon learning of the alterations, it informed WDF and the DEP of the need for the conveyors to be affixed to the ground. Under these circumstances, the Second Department affirmed the Supreme Court’s dismissal of plaintiff’s product liability claims against Serpentix based on design defect and failure to warn. The court held that “for there to be recovery for damages stemming from a product defective because of the inadequacy or absence of warnings, the failure to warn must be a substantial cause of the events producing injury.” The Kosta case reaffirms the general rule that a product manufacturer may avoid strict product liability where substantial modifications or alterations are made to its otherwise safe product by a third party. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Code Red: Second Department Deciphers the Reckless Disregard Standard in Ambulance Accident Cases April 5, 2024 < Back Share to: In Adolfo Chino Alonso v Crest Transportation Service, Inc., et al. , the Second Department clarified the reckless disregard standard of care under the Vehicle and Traffic Law § 1104(e). The incident in question involved an ambulance owned by the defendant Crest Transportation Service, Inc., and operated by a non-party driver, which collided with the plaintiff’s vehicle in Brooklyn while transporting a patient with activated emergency signals and straddling the road's double-yellow line at 20 miles per hour. Defendants contended that the "reckless disregard" standard of care should apply, arguing that the non-party driver did not operate the ambulance with reckless disregard for others' safety. The court clarified that this standard applies only when an emergency vehicle driver engaged in an emergency operation engages in conduct specifically exempted from regular traffic rules by Vehicle and Traffic Law § 1104(b). Any other conduct causing injury is judged by ordinary negligence principles. The Defendant demonstrated that the non-party driver was operating the ambulance as an authorized emergency vehicle in an emergency operation, thus her actions were under the "reckless disregard" standard. Despite conflicting testimonies about the accident's circumstances, the defendant showed that the non-party driver’s actions did not constitute reckless disregard for others' safety. Therefore, the appellate court reversed the previous order and granted Defendant’s motion for summary judgment, dismissing the complaint against them. Alonso v. Crest Transp. Serv., Inc. .pdf Download PDF • 1.00MB Previous Next Contact

News Dram Shop Liability Expanded in New York September 28, 2009 < Back Share to: New York's Dram Shop Act provides that a tavern owner who unlawfully serves alcohol to an intoxicated person is liable to any third party injured by the intoxicated person. However, the intoxicated person himself/herself has no right to sue the tavern owner for his/her own injuries. In O'Gara v. Alicca, the intoxicated plaintiff, a pedestrian, was injured in an automobile accident. She sued the automobile driver, who then impleaded the tavern owner who allegedly unlawfully contributed to the plaintiff's intoxication. The tavern owner moved to dismiss, arguing that the tavern owner could not be compelled to pay damages in a case brought by the intoxicated person. Plaintiff Kathleen O'Gara began the evening of October 28, 2006 with a Percocet. She then went off to the Katonah Bar & Grill, where she allegedly consumed "copious amounts of alcohol." Kath left the tavern at 5:00 a.m. and then, for reasons she can no longer recall, chose to walk across the Saw Mill River Parkway. Defendant Matthew Alacci was driving on the Parkway and his car struck the plaintiff. The plaintiff filed suit against Alacci, claiming he was at fault for the accident. Alacci impleaded the tavern on a cause of action for contribution on the theory that the tavern wrongfully caused the plaintiff's intoxication. In a case of first impression, an appellate court in NY ruled that the claim for contribution is valid and can go forward. The court ruled that while an intoxicated person cannot sue a tavern for damages under the Dram Shop Act, there is no reason to prohibit a defendant from seeking compensation from the tavern on the Act. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06668.htm Previous Next Contact

News Estate of Family Who Fled Nazi Germany Sues Met For Return of Picasso Allegedly Sold Under Duress November 18, 2016 < Back Share to: The estate of a family who fled Nazi Germany recently sued the Met Museum in the U.S. District Court, Southern District of New York, claiming that it was the rightful owner of a work by Pablo Picasso titled “The Actor.” According to the complaint in Zuckerman v. The Metropolitan Museum of Art, Paul Friedrich Leffmann, a successful and wealthy businessman from Cologne, Germany, purchased the work in 1912. After Germany’s Nazi regime implemented the Nuremberg Laws, the Leffmanns were forced to emigrate to Italy in 1937. There, according to the complaint, they faced the same kind of persecution they suffered in Germany. The plaintiffs further alleged that, due to the discriminatory and confiscatory laws in Italy, and the regulatory barriers associated with fleeing to countries such as Switzerland and Brazil, Lefmann, sold the Work under duress at a deep discount in 1938. After the Work changed hands at least two more times, the Work was donated to the Met in 1952. According to the complaint, the Met either knew and failed to disclose; or should have known that the Work had been owned by a Jewish refugee who only disposed the Work under duress because of Nazi and Fascist persecution. In support of this allegation, the plaintiff cited, among other things, State Department efforts to warn museums, libraries, art dealers, and others to use vigilance in identifying “cultural objects with provenances tainted by World War II.” The plaintiff also alleges that the Met published an inaccurate provenance for the Work, which indicated that Leffmann sold the Work much earlier than 1938. According to news reports on the case, the Met is expected to argue that Leffmann actually sold the Work at market value in 1938 and was therefore, not a sale under duress. The Met is also expected to argue that inaccuracies in the Work’s provenance were based on a former buyer’s inaccurate recollection rather than anything nefarious. It will be interesting to see how Zuckerman unfolds. There is no denying that the Nazi regime looted art and that many sales were made under duress. One question is whether a valuation analysis can shed light on the issue of whether this Work was sold at the then value or under duress. Watch this space. Thanks to Mike Gauvin for his contribution to this post. For more information, please email Dennis Wade at dwade@wcmlaw.com . Previous Next Contact

News Defense Jury Overruled (NY) November 21, 2013 < Back Share to: In DiDonna v. Houck, the Second Department granted plaintiff’s motion to set aside a verdict that was contrary to the weight of the evidence. The plaintiff was struck while crossing the street in a crosswalk by a vehicle driven by the defendant. After trial, the jury found that the plaintiff was 60% at fault while the defendants were 40% at fault for the accident. The court found that the plaintiff began crossing the street on a “walk” signal and at all times stayed within the crosswalk. There was no evidence presented indicating otherwise. Pursuant to Vehicle and Traffic Law §1112, a pedestrian crossing a roadway during a steady walk signal must be given the right of way. If a pedestrian partially completes his or her crossing on the walk signal, that pedestrian may proceed on a flashing or steady “don’t walk” signal. Applying the law, the court could not find a fair interpretation of the evidence that was consistent with the jury’s findings. As such, the court held that the verdict was contrary to the weight of the evidence, quite a high standard to meet. The court set aside the verdict and granted a new trial on liability, unless the parties stipulated to a finding that the plaintiff was 5% at fault and the defendants were 95% at fault for the accident. The verdict is not all that surprising for a case tried in Westchester County, a defendant-friendly venue. However, the court’s decision is not as predictable. The court essentially made its own finding on liability, conditioning it with the threat of a new trial. As seen in this case, a favorable jury verdict, or a favorable venue, will not automatically help a party when the evidence presented does not discharge a party’s liability under the law. However, the defendant will get the benefit of that same jury deciding the damages issues in a bifurcated trial. Thanks to Anne Mulcahy for her contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Checking it Twice: 2nd Circuit Affirms Dismissal of Doctor’s Suit Against Insurer for Bad Faith Reporting (NY) December 23, 2019 < Back Share to: Recently, in the lawsuit captioned: Haar v. Nationwide, the Second Circuit affirmed the New York Court of Appeals decision that a doctor is unable to sue an insurer for bad faith reporting under New York Public Health Law § 230(11)(b) because the statute does not create a private right of action. In 2017, Harr sued Nationwide because it submitted a complaint to the New York Department of Health’s Office of Professional Misconduct (OPMC) based on Harr’s conduct in the treatment of four patients in 2012 and 2013. Each of the patients was injured in a vehicle insured by Nationwide and each claim was either partially or fully denied because of the absence of a “cause and effect relationship” between the injuries and the accident or because of the applicable fee schedule. The OPMC investigated the complaint and cleared Harr. Harr subsequently sued Nationwide arguing that the insurer was guilty of bad faith reporting. The statute states that “[a]ny person, organization, institution, insurance company, osteopathic or medical society who reports or provides information to the [state board for professional misconduct] in good faith, and without malice shall not be subject to an action for civil damages or other relief as the result of such report.” The Court utilized the three Schlessinger factors to determine whether an implied right of action exists under this statute: 1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme. Schlessinger v. Valspar Corp., 686 F.3d 81, 87 (2d Cir. 2012). The Court found that Harr did not meet any of the factors. First, the statute was not enacted to benefit the individual being reported, but rather to protect the individual making the complaint. Second, the legislative purpose was to encourage reporting, not to discourage bad faith reporting as Harr argued. Lastly, allowing for a private right of action would be inconsistent with the legislative scheme because the statute specifically states that reports of misconduct are confidential and inadmissible in administrative or judicial proceedings. The case brings interesting closure to an issue that lacked high court precedent in New York. Thanks to Priscilla Torres for her contribution to this post. Please email Colleen E. Hayes with any questions Previous Next Contact

News Batten Down the Hatches! NJ Appellate Court to Examine Fortuity Question (NJ) November 15, 2019 < Back Share to: A New Jersey couple, the Inganamorts, recently filed an appeal to the 3rd U.S. Circuit Court of Appeals after losing to their insurer, Chartis, in a coverage battle that truly rocked the lower court’s boat. The original dispute arose after the Inganamorts sought coverage with Chartis when their yacht partially sank while docked at a marina in Boca Raton, Florida. Chartis denied coverage for the incident and filed suit, seeking a declaratory judgment that it owed no coverage for the couple's claim because the policy only covers a loss that is proven to be the result of a fortuitous event. U.S. District Judge WIlliam H. Walls of the District of New Jersey granted Chartis' motion for summary judgment (which we reported on earlier this year) on the basis the Inganamorts failed to show that the amount of rainfall on the days in question was sufficiently fortuitous to have caused the yachts partial sinking. Chartis argued that the vessel's damage was not fortuitous because they stemmed from a hole in the boat that we brought about by years of lack of upkeep. Conversely, the Inganamorts contend that the heavy rainstorms had overwhelmed the vessel and caused it to partially sink. The lower court’s decision serves as a useful illustration of how courts apply the fortuity rule. Generally, the insured need only prove that a loss or damage to property occurred while the policy was in force and that the loss arose from a cause that is not excluded under the policy. Interestingly enough, Chartis asserts in their reply brief that even if the Inganamorts were able to demonstrate a fortuitous loss in the case at hand, coverage would nevertheless still be barred by several policy exclusions. The Inganamorts may inevitably be cornered into two dangerous alternatives, or as the harbor master may say, be stuck between the devil and the blue sea. Thanks to James Papadakis for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Greenbrier Classic Loses Hole-in-One Case, Now Sues Broker March 3, 2017 < Back Share to: One of the events at the well-known Greenbrier Classic golf tournament in West Virginia is the Hole-in-one Jackpot, where the fans seated in the grandstands win cash prizes if the golfers land a hole-in-one on the 18th hole. In order to limit their exposure, the operators of the golf tournament (Old White) obtained an insurance policy that would pay out in the event they awarded prize money. One of the conditions of the policy required that the 18th hole be at least 150 yards from the tee. During the 2015 tournament, two golfers nailed holes-in-one, and the operators paid out about $200,000 in prize money. But the insurers disclaimed coverage because the hole was only 137 yards. The organizers sued, claiming that they made it plain when they applied for coverage that the PGA was in charge of pin placement and that they would not know -- or have any control -- over the distance of the hole. Each party moved for summary judgment, and the insurers' argument was simple: that despite whatever expectation that the organizer had, the language of the policy regarding the 150 yard minimum was very clear. The Court thus ruled in favor of the insurers. But Old White has now sued their insurance brokers, claiming that the brokers were fully aware that the organizers had no control over pin placement, that the organizers were never advised about the distance limits, and that the brokers knew that Old White did not want a policy with a distance limit. WCM will continue to follow this saga, and please write to Mike Bono for more information. Previous Next Contact

News Does New York’s “Storm in Progress” Rule Apply To Concealed Hazards? January 28, 2022 < Back Share to: In New York, when a plaintiff is injured due to a slip and fall on snow and ice, a landowner’s duty to take reasonable measures to remedy a dangerous condition caused by a storm is suspended while the storm is ongoing until a reasonable time after the storm has ended. It is also well settled that the New York City Administrative Code Section 7-210 imposes tort liability on property owners who fail to maintain city-owned sidewalks in a reasonably safe condition, but the Court of Appeals has held that a tree well is not part of a sidewalk under this Section. The First Department recently addressed these holdings in deciding whether a homeowner was exempt from liability where a tripping hazard from a tree well was concealed by an ongoing snowstorm. In Kovel v. Glenwood Mgmt. Corp., 200 A.D.3d 460 (1st Dep’t 2021), the plaintiff tripped and fell on a stone tree well border on a sidewalk abutting a building owned by defendants. Plaintiff’s accident occurred at night during a snow fall. Plaintiff claimed that her accident occurred because the border surrounding the tree well was an inherently dangerous condition that was neither open nor obvious at the time of her fall because it was covered in snow from the storm. The trial court denied defendants’ motion for summary judgment and First Department reversed, holding that the claims against the defendants should be dismissed. The court found that defendants established that the tree well border was not an inherently dangerous condition and that plaintiff failed to rebut defendants’ meteorological proof establishing that there was a storm in progress at the time of her fall. Accordingly, the court held that there was no duty to remove the snow at the time of the accident because “when the accumulation of snow is the reason for liability there is no basis to limit the storm in progress doctrine to only icy conditions.” The Kovel case makes it clear that the “storm in progress” rule can protect a landowner from liability where an accident occurs during a storm, even where snow from a storm creates or conceals a potentially dangerous condition. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News EPA Notice Letter A Suit Under Policy (NJ) September 16, 2016 < Back Share to: Cooper Industries v. Wasau is an insurance coverage dispute that arose out of a massive Passaic River cleanup effort by the EPA and State of New Jersey and their efforts to collect payment from potentially responsible parties (PRP). Cooper received a PRP letter from the EPA stating that Cooper may be responsible for costs of the cleanup project due to alleged conditions created by manufacturing facilities owned by Cooper companies. Cooper alerted OneBeacon of this notice, but the insurer refused to cover the company’s defense costs in the EPA proceedings, asserting that the policy language provided that “OneBeacon "shall have the right and duty to defend any suit...” and that this letter was not a suit. The Court looked to other jurisdictions that held that a PRP letter was, in essence, a pleading, and that these letters compelled information that would similarly be produced in discovery. The Court also pointed out that the PRP letter stated that the EPA could initiate a lawsuit if Cooper declined to assist with the project. The Court found that the letter used the threat of legal proceedings to compel payment or conduct by a policyholder, which brought the letter within the definition of “suit” under the policies and ultimately found that OneBeacon must defend Cooper Industries in connection with the cleanup project. Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono for more information.       Previous Next Contact

News (Serious) Injury is in the Eye of the Beholder May 18, 2016 < Back Share to: “Beauty is in the eye of the beholder” is an ancient and resonant proverb. We know intuitively that beauty is not judged objectively but according to the beholder’s estimation. But what does the eye of the beholder have to do with torts? Everything it seems. Paulema v. Alam (Index# 157041/2014), involved a garden variety auto accident in which defendant sought dismissal of the complaint because plaintiff did not sustain a “serious injury” as required by Insurance Law §5102(d). The contest before Judge Ramirez involved two sets of eyes. The plaintiffs’ doctors saw permanent injury resulting from the crash. The defendant’s doctors saw degeneration resulting from age and no causative nexus between the crash and the complaints. What to do? Motion for summary judgment denied because the differing views of the medical beholders raised a question of fact. This decision, though important to the litigants, is of no great significance. But it is a useful reminder that expert evidence, like judgments on beauty, are often wholly subjective. And the frustration is that opposing experts looking at the same diagnostic films or the same data, can “behold” completely different views on severity and causation. This post reveals nothing new to our readers, save for the author’s frequent musings about the judgments of highly paid expert beholders. Thanks to Dana Purcaro for her contribution to this post. For more information, please email Dennis M. Wade at dwade@wcmlaw.com .   Previous Next Contact

News Open And Obvious Still Good Basis For Summary Judgment In The 2nd Department February 3, 2012 < Back Share to: In 2004, the Appellate Division had limited the “open and obvious” defense in the case of Westbrook v. WR Activities stating that "the duty to maintain premises in a reasonably safe condition is analytically distinct from the duty to warn, and that liability may be premised on a breach of the duty to maintain reasonably safe conditions even where the obviousness of the risk negates any duty to warn." However, the doctrine can still be used to obtain summary judgment. In Holdos v. American Consumer Shows, Inc., the plaintiff tripped over a yellow and blue cable cover while attending a trade show in a community college gymnasium. In affirming the decision that granted the defendant summary judgment, the 2nd Department held that there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous. Thus, a defendant can still prevail on the defense of the claimed condition being open and obvious provided the defendant presents evidence that the condition is not inherently dangerous. Thanks To Bill Kirrane for his contribution to this post. If you would like more information about this post, please contact Nicole Brown at nbrown@wcmlaw.com . http://www.nycourts.gov/reporter/3dseries/2012/2012_00489.htm   Previous Next Contact