News New Jersey Appellate Division Upholds Dismissal of Plaintiff’s Eye Injury Claim March 20, 2018 < Back Share to: In Piper v. The Cheesecake Factory, plaintiff alleged her eye was injured by a fragment from a shattered plate when a restaurant server dropped the plate six feet from the booth where plaintiff was sitting. The matter went to trial. The trial judge dismissed plaintiff’s complaint with prejudice finding that her medical expert’s report was net opinion. The court noted that no doctors’ records showed the presence of a foreign object in her eye or a corneal abrasion. Plaintiff was treated by her eye doctor for what was diagnosed as pre-existing blepharitis. She also consulted other ophthalmologists, one of whom testified as her expert and concluded that if a foreign body hit her eye, it might have contributed to her symptoms. Defendants’ medical expert found no signs of trauma or injury to her cornea. The Appellate Division agreed with the trial court that no medically sound evidence established a causal link between plaintiff’s alleged trauma and reported symptoms. This case highlights how close scrutiny of an adversary’s medical expert report can lead to a dismissal of the adversary’s claim. Thanks to Michael Noblett for his contribution to this post.         Previous Next Contact

News Hot Yoga Gone Wrong: Gym Saved by Exculpatory Clause in Member Usage Agreement January 7, 2022 < Back Share to: When it comes to slip and falls, one doesn’t usually think of a hot yoga studio in a luxury gym as a site rife with hazardous conditions. However, in New Jersey, the Appellate Division had to examine a summary judgment decision in a case where plaintiff allegedly slipped and fell on sweat on the floor of a hot yoga studio in Florham Park. Skarbnik v. Life Time Fitness, Inc., 2021 WL 3923270 (App. Div. 2021). In Skarbnik, the Appellate Division examined whether an exculpatory clause in plaintiff’s member usage agreement warranted a dismissal for defendant Life Time Fitness, Inc. Plaintiff, who had been a member of Life Time Fitness since 2011, signed a Member Usage Agreement that contained an assumption-of-risk provision which essentially stated that by signing the agreement, plaintiff understood that there was an inherent risk of slip and fall injuries arising from the use of equipment and services at Life Time Fitness. There was also a release of liability provision in the member usage agreement whereby plaintiff agreed to waive any claim arising against Life Time Fitness for personal and bodily injury resulting from the negligence of Life Time Fitness. Plaintiff’s complaint alleged that Life Time Fitness created a dangerous condition consisting of a wet and slippery floor due to sweat and that Life Time Fitness failed to warn patrons of said dangerous condition. After discovery ended, the trial judge granted defendant summary judgment based on exculpatory language in the member usage agreement. Plaintiff appealed stating that the member usage agreement was too broad and unconscionable. The Appellate Division affirmed. While noting that exculpatory clauses are generally disfavored for incentivizing careless behavior, the Appellate Division distinguished special assumption-of-the-risk clauses in the context of private gyms from other exculpatory clauses. The Appellate Division stated that a private gym cannot insulate itself through an exculpatory clause from the ordinary duty of care owed by all businesses to its invitees seen in “garden variety slip and fall case” such as where someone slips on the tread of a stair. However, the Appellate Division held that “slipping on sweat while exiting a ninety-degree-heated and darkened hot yoga studio is not the type of accident that ‘could have occurred in any business setting’, but was related directly to plaintiff’s participation in defendant’s hot yoga class.” Id. at 4. Therefore, while an exculpatory clause in a contract might not be held enforceable for “garden variety” slip and falls, where the exculpatory clause has language pertaining to assumption-of-the-risk and the plaintiff was participating in an activity that places themselves in harm’s way, and the defendant has not acted in a grossly negligent manner, then the exculpatory clause may be enforced. Thanks to Brendan Gilmartin for this contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Constructive Notice Caught On Tape (NJ) March 27, 2013 < Back Share to: In the recent decision of Marina Andara v. Wal-Mart Stores East, New Jersey’s appellate court relied on surveillance footage of the plaintiff’s accident to rule in favor of the plaintiff on the issue of constructive notice. The plaintiff alleged that she fell due to water on the floor at Wal-Mart near the self service counter. Surveillance footage of the incident showed the plaintiff’s fall and the subsequent clean-up by a Wal-Mart employee. Wal-Mart moved for summary judgment, alleging that they did not have actual or constructive notice of water on the floor. With their motion, Wal-Mart submitted an affidavit of an employee who asserted that she walked through the area five minutes before the plaintiff’s fall and there was no water on the floor. The surveillance footage revealed that the employee was in the area, but did not necessarily confirm that an inspection had taken place. Moreover, the footage did not show anything being spilled on the floor for at least an hour before the incident, leading one to believe that the wet condition existed for over an hour. The appellate court found that, when viewing the facts in the light most favorable to the plaintiff, a rational jury could find that Wal-Mart had constructive notice of the water prior to plaintiff’s fall and reversed the lower court’s decision that had dismissed the plaintiff’s complaint. Special thanks to Heather Aquino for her contributions to this post. For more infromation, please contact Nicole Brown at nbrown@wcmlaw.com .   Previous Next Contact

News Tenant Is All Wet As Res Judicata Won't Bar Subro. Case Despite Prior Settlement January 28, 2008 < Back Share to: In Employers' Fire Insurance Company v. Brookner, 2008 NY Slip Op. 00448, AD Index 2007-02514, Kings Co. Index 13987/06, tenants and owners of a commercial building owned by RAIA Realty Corp allegedly sustained extensive water damage due to a faulty hose of a laser machine owned by Andrew Brookner, the third floor tenant. Employers' Fire Insurance Company, RAIA Realty Corp's insurer, paid the claims of its insureds and the first floor tenant. Meanwhile the second floor tenants, Alexandra and Edward Etkin, commenced a lawsuit against RAIA, RAIA's principal and Brookner for property damage and personal injury stemming from this same incident. RAIA and its principal asserted crossclaims for contribution and indemnification against Brookner. Ultimately, without contribution from RAIA or its principal, Brookner paid the settlement reached, a stipulation of discontinuance was executed and the case was discontinued with prejudice. Thereafter, Employers' Fire Insurance Company commenced a subrogation action against Brookner to recoup the monies paid to its insureds as a result of the water damage caused by Brookner's negligence. Brookner moved to dismiss, asserting that this subrogation action was barred by res judicata based upon the stipulation of discontinuance in the Etkin case, which arose from the same occurrence. The trial court denied this motion. In affirming the lower court's decision, the Appellate Division - Second Department, stated that subrogee insurer stands in the shoes of its insureds and that the doctrine of res judicata only bars additional actions between the same parties, on the same claims, based upon the same harm. RAIA and its principal's crossclaims in the Etkin case were based upon Etkins' harm whereas the subrogation action was based upon the harm suffered by RAIA and its principal. Moreover, the stipulation of discontinuance in the Etkin case was silent as to the crossclaims. In the end, the Court determined since RAIA and its principal were not barred by res judicata, the subrogation action could proceed. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_00448.htm Previous Next Contact

News Consumer Protection Law Helps Pierce the Corporate Veil and Leads to Treble Damages (PA) December 20, 2019 < Back Share to: The Pennsylvania Superior Court recently affirmed the trial court’s decision to pierce the corporate veil and award treble damages under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, Pennsylvania’s Consumer Protection Law, in relation to home repairs in Philadelphia. In Sereda v. Center City Acquisitions LLC the Superior Court heard the appeal of defendants Center City Acquisitions and Noah Ostroff following a bench trial regarding damages to the Sereda’s home. Appellants argued that, inter alia, the trial court erred in piercing the corporate veil to find Ostroff personally liable and awarding damages under the UTPCPL. In the underlying case, the Seredas alleged that Ostroff and Center City were liable for breach of contract, breach of implied warranty of habitability and reasonable workmanlike construction, and violations of the UTPCPL for failing to address and repair problems dealing with gaps in the hardwood floors and also leaking windows. The Seredas presented evidence that they communicated only with Ostroff for the two-year period during which the repairs were requested and that Ostroff was the representative from Center City who coordinated the contractors and workers to address the issues. In its opinion, the Superior Court agreed with the trial court’s decision to pierce the corporate veil and to find Ostroff personally liable under the participation theory because Ostroff was the president, acting officer and sole shareholder of Center City; and also cited that he bought the land, built the house, promised a warranty, and participated in the dealings with the Seredas throughout. The Superior Court also agreed with the trial court’s decision to award treble damages under the UTPCPL for water damage stemming from the leaking windows. The Court pointed out that the ‘catchall’ provision of the UTPCPL does not require the showing of an actor’s intent to support a fraudulent or negligent misrepresentation claim, and that while Ostroff’s actions with regard to the flooring did not raise to a level requiring additional punitive damages, the failure to fix the windows and subsequent water damages was sufficient to support a finding that Ostroff misled the Seredas into believing the errors in their home would be corrected under a promised builder’s warranty. Ultimately, the Superior Court affirmed the trial court’s decision finding Ostroff and Center City jointly and severally liable and awarding damages under the UTPCPL. Thanks to Greg Herrold for his contribution to this post. Please e-mail Vincent F. Terrasi with any comments.   Previous Next Contact

News PA Superior Court Addresses Notice in Claims Made and Occurrence Policies. January 9, 2008 < Back Share to: In the case of Ace American Insurance Co. v. Underwriters and Lloyds, (December 20, 2007), the Superior Court ruled on the issue of late notice. The Court ruled that in a claims-made policy (as opposed to an occurrence policy): (a) notice is a condition precedent to coverage, and not a limitation of coverage; and (b) the notice-prejudice occurrence rule does not apply to “claims made policies.” http://www.superior.court.state.pa.us/opin.htm Previous Next Contact

News Certified Mail Without Returned Receipt... Worthless (NY) March 19, 2013 < Back Share to: In Tower Insurance Co. of NY v. Ray & Frank Liquor Store, Inc. et al, the insurer sought a declaratory judgment with respect to coverage disclaimed to an insured for a claim in underlying litigation. The defendant insured had given late notice of the claim, and the plaintiff sent a disclaimer in response. The disclaimer was sent via certified mail return receipt requested. However, at the bench trial, the insurer only produced the letter - not the signed receipt. The only witness to testify did not personally mail the letter, and no one was produced to testify regarding mail policies in a more general way. The matter proceeded to trial and the judge ruled in favor of the insurer, finding that it was not obligated to defend and indemnify the defendants. However, the First Department reversed the trial court's decision, finding that the insurer failed to adequately demonstrate that the disclaimer letter was actually mailed. Specifically, the insurer's failure to produce the return receipt or otherwise provide direct evidence of mailing was fatal to its cause. The moral of the story is that sending a significant document, such as a disclaimer, by certified mail is only the first step. In order to prove service, there must be testimony by one with knowledge that the document was actually mailed or, if available, a receipt showing actual service was made offered in evidence. Special thanks to Georgia Stagias for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Superior Court of Pennsylvania Confirms that the Statute of Repose for Construction Defect Claims Begins After a Certificate of Occupancy is Issued March 22, 2024 < Back Share to: The Pennsylvania Statute of Repose, 42 Pa.C.S. § 5536, provides a defense in construction defect cases by barring those lawsuits against builders or design professionals performing lawful improvements to real property which are filed more than 12 years after the date construction is completed. The Superior Court of Pennsylvania recently clarified the point at which the statute begins to run and what is considered “lawful” construction. In Aloia v. Diament Building Corp ., a certificate of occupancy for a newly built home was issued on March 30, 2006. Another certificate of occupancy for additional work on the basement was issued on February 20, 2007. In 2016, plaintiffs considered purchasing the property and contacted defendant Diamet Building Corp., which performed work on the initial construction. Diamet attested to the quality of the work on the property, so plaintiffs completed the purchase. In October 2018, the home experienced water infiltration which plaintiffs’ engineer found to be caused by defects in the initial construction, specifically the exterior building envelope system. Plaintiffs did not file suit until March 2021, and Diamet successfully moved to dismiss on the basis that the lawsuit violated Pennsylvania’s Statute of Repose for construction defects. On appeal, plaintiffs argued that the statute did not apply because the construction was not “lawful” since Diamet allegedly violated an applicable construction code. Relying on its earlier holding in Johnson v. Toll Bros. , 302 A.3d 1231 (Pa. Super. 2023), the Superior Court disagreed and held that regardless of possible violations of local, state and federal construction rules, the construction is deemed complete and “lawful” for purposes of the statute of repose once a certificate of occupancy is issued by the appropriate authority. Thus, Pennsylvania’s 12-year time period under the statute begins upon the issuance of the certificate of occupancy. The Court recognized that the initial certificate of occupancy was completed in March 2006 while the certificate of occupancy for the basement work was issued in February 2007. Since the lawsuit was filed more than 12 years after the issuance of the 2007 certificate of occupancy, the Court found that the statute bars plaintiffs’ claims against Diament as a matter of law. The Court also rejected plaintiffs’ argument that the statute does not apply because the construction was not actually completed at the time the certificates of occupancy were issued, finding that such allegations do not circumvent the issuance of a certificate of occupancy as the “triggering event” that initiates the statute of repose. The Alioa decision confirms that the issuance of a certificate of occupancy is the key event that triggers the statute of repose for construction defect claims and provides the basis for proving that the construction at issue was “lawful” for an application of the statute. Whether a defendant violated a certain code or standard is not relevant in determining whether the statute applies. Thomas Aloia and Amy Stimson v. Diament Building Corp. .pdf Download PDF • 410KB Previous Next Contact

News Court Curtails Use of Incompetent's Settlement (NY) November 22, 2013 < Back Share to: Most parents who serve as court-appointed guardians for their disabled child would know what is in their child’s best interest and would use settlement proceeds to advance those interests. But that does not mean that courts will abdicate their oversight responsibilities. In the Matter of the Application of Geoffrey M. and Jordanna M. involves Sigal M., a girl who suffers from cerebral palsy, quadriparesis, microcephaly, and other developmental issues. Previously, she had been adjudicated incapacitated under Mental Hygiene Law 81.02(b), and had received a structured settlement. The amount in the estate at the time of this decision was approximately $8 million. Sigal’s parents, who are also her co-guardians, sought to use a portion of those funds to pay $33,349 on the bat mitzvah party for her and 237 guests, and $60,000 on a trip to Israel for Sigal, her family, and an aide. The Nassau District Court rejected the request. In reaching its decision, the court considered two approaches. The first, followed by the First and Second Departments, limits withdrawals to necessities and education that cannot otherwise be provided by the parents. The second, articulated by Court of Claims Judge David Weinstein focuses on the best interests of the child. Noting that Article 81 is silent with respect to extraordinary expenses such family holidays and culturally significant milestones, the court focused on the necessity of preserving the estate for the child. For that reason, and because Sigal’s parents were people of means, the court denied the parents’ request to use the money to pay for the bat mitzvah and limited the amount of funds to be used on the vacation. Expenses for the daughter, her aide, and her mother were appropriate, but the court refused to allow expenses for the parents’ hotel room, and expenses related to Sigal’s siblings. Most parents believe they know what is best for their children, but courts have oversight responsibilities. When a guardian spends a disabled person’s money, courts will scrutinize whether the expenditures are for the disabled person or their family as a whole. Based on this decision, even when a disabled person has a major life event on the horizon, their guardians would be well advised to keep estate expenditures as ordinary as possible. Thanks to Mike Gauvin for this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Second Department Reinstates Trip and Fall Action, due to Issue of Fact (NY) March 10, 2017 < Back Share to: In Kelly v Mall at Smith Haven LLC., the Second Department recently discussed how a personal injury plaintiff can defeat summary judgment motions based on differing theories of how the accident occurred. The case arises from injuries plaintiff allegedly sustained in 2010 while walking toward the entrance of Smith Haven Mall (the mall). The plaintiff alleged that a defect on the curb leading up to the entrance of the mall caused him to fall, resulting in injury. Plaintiff commenced an action against the mall and E.W. Howell Co., Inc. (Howell) and RF Paving Corp. In 2007, Howell performed renovation work at the mall, sub-contracted with RJ Paving to construct the sidewalk where the plaintiff allegedly fell. After discovery, each defendant moved for summary judgment , arguing that the plaintiff did not identify the cause of his fall. The Supreme Court granted all three motions and dismissed the plaintiff’s complaint in its entirety. On appeal, the Second Department held that while the complaint should have been dismissed as to Howell and RF Paving, the Supreme Court wrongly granted summary judgment for the mall. In essence, the crux of all three defendants’ arguments was that the plaintiff failed to identify the cause of his fall, and therefore failed to make out a claim for negligence. The Court pointed out that it had to view all evidence in the light most favorable to plaintiff, as the non-moving party. Here, the plaintiff testified that as he tried to step onto the curb, he felt his foot get “caught in the crack of the curb.” According to the Second Department, this testimony was sufficient to isolate the chip in the sidewalk that allegedly caused his fall. The Second Department held that the plaintiff presented sufficient evidence to present a question of fact as to the existence of the alleged curb defect, and reinstated the complaint against the mall. However, Howell and RF Paving demonstrated their prima facie entitlement to judgment as a matter of law by establishing that they did not create the defect and that they had no continuing duty to maintain the sidewalk years after performing construction. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Appellate Division Affirms No New Trial & Additur in $35,000 Jury Award for Permanent Ankle Injury (NJ) July 17, 2018 < Back Share to: In Helfgott v. Jospeh Konopka Funeral Home, the New Jersey Appellate Division evaluated whether the trial court correctly denied plaintiff’s motion for a new trial or, in the alternative, additur. Plaintiff alleged that he suffered severe and permanent injuries when he slipped and fell on the sidewalk abutting a property owned by defendants. Plaintiff alleged that the defendants failed to inspect and maintain the sidewalk from forming snow and ice. At trial, plaintiff (age 36) testified that he slipped and fell on icy pavement and injured his ankle. Police and emergency medical services responded to the scene, and plaintiff underwent surgical open reduction with internal fixation to his right ankle. The treating surgeon inserted an eight-hole metal plate with eight screws. Plaintiff was immobile for several months, received an additional surgery to his right ankle, and attended physical therapy sessions. At trial, plaintiff testified that he made a “decent recovery,” but his ankle was not fully recovered. Plaintiff also testified that he walked with an irregular gait and his right foot tended to lag behind his left foot. Plaintiff further testified that he experiences stiffness and soreness in his right foot. However, plaintiff admitted that he walked up to twelve miles in one day during a vacation. Plaintiff’s medical expert testified at trial that plaintiff’s future prognosis included: (1) an ankle fusion; (2) total ankle replacement; and (3) continued conservative treatment. Defendants’ medical expert testified that plaintiff had indeed sustained a permanent injury and that plaintiff’s injuries had resulted in residual disability, meaning an indefinite functional impairment to plaintiff’s right ankle. However, defendants’ medical expert also testified that plaintiff might not need fusion surgery and although plaintiff’s condition could worsen, he could also be healthy. Defendants’ medical expert opined that plaintiff has a “minimal amount of residual disability” and no noticeable gait. The jury found that defendants were negligent and solely responsible for plaintiff’s injuries—awarding plaintiff $35,000 in damages for pain and suffering, disability, impairment, and loss of enjoyment of life. Plaintiff then filed a motion for a new trial or additur, which was denied by the trial judge. On appeal, plaintiff argues that the jury’s $35,000 award is grossly inadequate, shocks the conscience, and results in a miscarriage of justice. The Appellate Division found that the trial judge’s determination to deny plaintiff’s motion for additur and a new trial did not shock the judicial conscience and was not a miscarriage of justice. The trial court judge correctly found that the jury had the right to reject the credibility of any fact or expert witness and to accord the trial testimony whatever weight it determined appropriate. It is not the judge’s role to second-guess the jury’s credibility assessment, or weigh the persuasiveness of the evidence, but rather to determine whether a reasonable jury could accept the evidence presented as support for the verdict. Here, based on the plaintiff’s testimony and the testimony of both medical experts, the jury could reasonably find that although there was a permanent injury to plaintiff, the impact was minimal and warranted an award of $35,000. Thanks to Ken Eng for his contribution to this post and please write to Vincent Terrasi for more information. Previous Next Contact

News "Prior Knowledge" Exclusion Bars Coverage For Law Firm In NY Claims-Made Policy October 21, 2009 < Back Share to: Claims-made policies are the most common form of coverage available for professional liability. These policies provide coverage to professionals for claims made during the life of the policy irrespective of the date of the acts or omissions giving rise to the claim. Given the focus on when a claim is actually made, insurers seek to avoid the moral hazard of an uninsured professional running out to buy claims-made coverage once it becomes aware of an act or omission that may give rise to a claim in the future. Insurers seek to avoid this problem by requiring specific representations in the application for insurance about the insured's knowledge of any potential claims or through an exclusion barring coverage for claims based on any prior acts known by an insured that could give rise to a claim. Although there are several ways for professionals to preserve coverage when it obtains such information, this post will focus on the "prior knowledge" exclusion contained in the policy in question. In Executive Risk v. Pepper Hamilton LLP, a law firm represented a student loan servicer that allegedly misrepresented information that made certificates backed by the underlying loans more attractive to potential investors. The law firm became aware of this fraud as well as two lawsuits filed against its client, the loan servicer, several months before it applied for the policy in question. The law firm did not disclose this information to any of its professional liability insurers. The primary claims-made policy contained a "prior knowledge" exclusion "for any act, error, omission, circumstance....occurring prior to the effective date of the policy if any insured at the effective date knew or could have reasonably forseen that [it] might be the basis of a claim." The lower court held that the insured's subjective belief that it might be sued was not sufficient to trigger the exclusion in the absence of some actual wrongdoing by the firm. In an interesting procedural twist, the New York Court of Appeals, the state's highest court, interpreted the policy according to Pennsylvania law. It rejected the "subjective" analysis made by the lower court and held as a matter of law that the law firm knew of acts that occurred before the policy's effective date "which they could have forseen to be the basis of a claim." In addition, the court rejected the suggestion that this "prior knowledge" exclusion required that the known act involve actual wrongful conduct on the part of the insured. Instead, the key inquiry is whether that insured knew of acts that could form the basis of a claim. The bottom line is that the excess carrier successfully argued that the "prior knowledge"exclusion contained in the primary policy barred coverage, a point seemingly never pressed by the primary insurer in the first instance! If you would like further information regarding this post, please contact Paul at pclark@wcmlaw.com . http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07453.htm Previous Next Contact