News A.D. Defines Foreseeability Of Crime Necessary For Negligent Security Claims June 25, 2008 < Back Share to: In Maria T. v. New York Holding Company Associates et al, the plaintiff was sexually assaulted at gunpoint in her apartment. In her lawsuit, she claimed that the defendants failed to provide adequate security for the building where she lived. She asserted that the defendants failed to maintain a working lock on the sole entrance into the building. Defendants moved for summary judgment on the grounds that the assault was not foreseeable in that they were unaware of any criminal activity in the building other than the crime at issue and that the prior crimes relied upon by plaintiff were not similar to the assault and therefore did not demonstrate that the assault was foreseeable. In opposition, plaintiff relied upon police reports that reflected criminal activities that occurred in or near the building to establish that this crime was foreseeable. Plaintiff also retained an expert in the field of premises security who opined that the subject apartment building was in a police precinct with high rates of crime and the drug activity in the neighborhood attracted criminal elements to the neighborhood, thereby making the assault on plaintiff foreseeable. The Trial Court denied defendants' motion, citing a question of fact as to the issue of foreseeability. In reversing this decision, the Appellate Division, First Department held that building owners and managing agents have a common-law duty to take minimal security precautions to protect tenants from foreseeable criminal acts of third parties. In order to establish foreseeability, the criminal conduct at issue must be shown to be reasonably predictable based upon prior occurrences of the same or similar criminal activity at a location sufficiently proximate to the subject location. While plaintiff cited seven prior instances of criminal activity in and around the apartment building, ambient neighborhood crime alone is insufficient to establish foreseeability. In conjunction with the fact that none of them were similar to the sexual assault committed against the plaintiff, the crime perpetrated upon plaintiff was not foreseeable ie., reasonably predictable. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_05558.htm Previous Next Contact

News Manufacturer’s Substantial Business Supports Finding of Specific Jurisdiction April 2, 2021 < Back Share to: On March 25, 2021, the U.S. Supreme Court issued its decisions in Ford Motor Co. v. Montana Eight Judicial District Court et al., and Ford Motor Co. v. Bandemer. By way of brief background, in both cases, the states exercised jurisdiction over Ford in products-liability actions stemming from auto accidents. In both cases, the Ford involved in the accident was brought to the state via the used-vehicle market. Specifically, in Ford Motor Co. v. Montana Eighth Judicial District et al., the lawsuit alleged Markkaya Gullett (“Gullett”) was killed in Montana when a 1996 Ford Explorer malfunctioned; in Ford Motor Co. v. Bandemer, Adam Bandemer (“Bandemer”) asserted injuries stemming from a collision in Minnesota involving a 1994 Crown Victoria. In both lawsuits, Ford moved to dismiss for lack of personal jurisdiction. Ford argued that a state could only exercise jurisdiction over Ford if Ford’s conduct in that specific state gave rise to the plaintiff’s claims. In other words, Ford asserted that a causal link only existed if the vehicle involved in the accident was designed, manufactured or sold by Ford in the state where the specific accident took place. In both cases, Ford did not manufacture or sell the vehicles in the forum state where the accident took place; instead, the involved vehicle was brought to the state through resales and relocations by consumers. The Supreme Court in both states rejected Ford’s argument, since Ford’s activities in the state were sufficient to establish the necessary connection to the plaintiff’s claims that a defective Ford motor vehicle caused the in-state injury. In an 8-0 decision, the Supreme Court affirmed the Supreme Court of Montana’s and Supreme Court of Minnesota’s holdings that the connection between Ford’s activities in the forum state and the plaintiff’s claims was close enough to support specific jurisdiction, as Ford systematically served markets in Montana and Minnesota for the specific vehicles involved in the accidents. In doing so, the Supreme Court held that to establish personal jurisdiction over a non-resident defendant, plaintiffs no longer need to establish a causal link between the defendants’ actions and the plaintiffs’ specific cause of action. Put another way, a manufacturer’s business in the forum state supports a finding of specific jurisdiction. This decision is significant because it represents a departure from the Supreme Court’s previous holding that a corporation is not subject to a lawsuit in a state where it was not incorporated or headquartered unless the lawsuit arose “out of or relate[s] to the defendant’s contacts” with the state. While it is unclear how this decision will apply outside of this context, in cases where a defendant has significant operations in the forum state, the decision suggests significant weight will be given to the location of the accident and the plaintiff’s place of residence. Thanks to Lauren Berenbaum for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News No Vacancy: Structures on Property Can Disqualify Coverage (PA) March 19, 2021 < Back Share to: In a recent Western District of Pennsylvania case, Morton v. Gardner, the court addressed what constituted vacant land under the insurance policy at issue. By way of background, after a dead tree on the defendant’s property fell onto the plaintiff’s vehicle, an issue arose as to whether the defendant’s insurer was required to pay for the damage. At the time of the incident, the property was not being used by the defendant and had not been used in many years – the only buildings on the property were five dilapidated structures that were essentially abandoned by the defendant. The defendant, a citizen of Georgia who had inherited the land, argued that since he did not use or actively maintain the property, it was essentially vacant and therefore covered under his insurance policy, which expressly covered vacant land as an insured location. However, the WDPA disagreed. Looking to Pennsylvania property law, as well as various definitions of the word “vacant” and prior case history, the court determined that the structures in place on the parcel of land rendered the land not vacant. The court was unpersuaded by the argument that the structures were abandoned and unoccupied themselves, distinguishing that the vacancy of the land had nothing to do with the status of the structures on the land. The court further held that the word “vacant” was not ambiguous and should not be construed as such. Based on this analysis, the court held that the insurer did not owe coverage to the defendant-insured, thus, creating an important distinction between vacant land and unoccupied property – in that, in order to constitute vacant land, there cannot be structures located on the land. Thanks to Abby Wilson for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News NY App Div Rules Gym Teacher's Instruction Sufficient to Support Summary Judgment December 31, 2009 < Back Share to: In Bramswig v. Pleasantville Middle School, a 12-year old plaintiff was injured when a classmate (and teammate) accidently struck him in the mouth with a hockey stick during a floor hockey game at Pleasantville Middle School in Westchester County. The plaintiff's first cause of action was based upon negligent instruction of the "high-sticking" rule by the gym teacher. (Presumably, there were other causes of action in this case in addition to negligent instruction, together with contributory negligence defenses, but none were addressed by the Court in this decision.) The gym teacher was deposed, and testifed that he instructed the students at the beginning of that game, and in fact at the beginning of every gym class, that the practice of "high-sticking" was prohibited in floor hockey (not to mention a double minor in the NHL if injury ensues.) Further, he testified that he defined "high sticking" as lifting one's hockey stick above his or her waist during play.The defendants moved for summary judgment on the issue of negligent instruction, and plaintiff argued that there was a triable issue of fact as to the substance of the gym teacher's warning. Specifically, the plaintiff asserted that it was unclear whether the instruction of "high-sticking" involved raising one's stick above the knees or above one's waist. The Appellate Division, Second Department found that the plaintiff's premised triable issue of fact was academic, in that regardless of the gym teacher's warning, the plaintiff was struck in the mouth by the high stick, and therefore either potential instruction was not heeded by the other student. Accordingly, the defendants' failure to instruct on the "high-sticking" rule was not a proximate cause of the plaintiff's injury, and defendants were granted summary judgment on this issue. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_09603.htm Previous Next Contact

News Famous Restaurant Sues over Coronavirus Shutdown Losses March 25, 2020 < Back Share to: The Covid-19 pandemic has swept the nation and the world and in its wake is coming a huge wave of insurance related litigation. In perhaps the first lawsuit Oceana Petition of what will most likely be a major trend of filings, Cajun Conti, the parent company for the New Orleans restaurant, Oceana Grill, has sued its insurer Underwriters at Lloyds London, for insurance coverage over coronavirus related business interruption, including in “the event of the businesses closure by order of Civil Authority.” The lawsuit was filed in Louisiana state court and specifically alleges that the Lloyds “all risk” policy restaurant losses due to the state mandated shutdown of the 500 person restaurant. The lawsuit references an order by Louisiana Governor, John Edwards, in response to the Coronavirus outbreak, banning gatherings of 250 or more people. In addition, the lawsuit references a restriction by New Orleans Mayor, LaToya Cantrell, ordering all restaurants to reduce their capacity by 50%. Since the filing of the lawsuit, restrictions have become even more strict, with the Governor issuing a statewide "stay at home" order until April 12. While some insurers have taken steps to limit the scope of coverage in these sort of situations after similar outbreaks such as SARS in 2003 and ebola in 2014 through various exclusions, the complaint alleges that here, there are no such relevant exclusions. This case represents merely the first drop in what could very be a torrential downpour of similar coronavirus related insurance coverage litigation. Thanks to Andrew Debter on his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

Rightly or wrongly, hotels and stores are held to a higher standard. Judges and juries expect more – especially if the hotel or store is a name brand defendant. And this reality is compounded by the sheer breadth of claims a hotel or store can face – everything from the common slip/trip and fall all the way through to data breaches, wrongful imprisonment, discrimination and sexual assault. WCM’s attorneys have seen all of these kinds of cases and we focus on making sure that you have the information you need so you can assess the good and bad of your case and manage your risk appropriately. And if the time comes for trial, our experienced trial lawyers will tell your story to a judge or jury. Retail & Hospitality Rightly or wrongly, hotels and stores are held to a higher standard. Judges and juries expect more – especially if the hotel or store is a name brand defendant. And this reality is compounded by the sheer breadth of claims a hotel or store can face – everything from the common slip/trip and fall all the way through to data breaches, wrongful imprisonment, discrimination and sexual assault. WCM’s attorneys have seen all of these kinds of cases and we focus on making sure that you have the information you need so you can assess the good and bad of your case and manage your risk appropriately. And if the time comes for trial, our experienced trial lawyers will tell your story to a judge or jury. Practice Lead Download Download

News Claim Arising from Fall through a Hatch Door Lands Flat on its Face (NJ) May 2, 2019 < Back Share to: The New Jersey Appellate Court recently reviewed a trial court decision granting summary judgment in favor of defendants in Mastrangelo v. Khanna. Plaintiff Mastrangelo, an employee of Metuchen Cardiology, fell through an open hatch door within the office and sustained multiple injuries. Dr. Sunil Khanna, plaintiff's direct boss, was the sole owner of both Metuchen Cardiology and Khanna Realty. Khanna Realty had entered into a triple net lease of the building with Metuchen Cardiology. The lease provided that the property was “completely assigned to” Metuchen Cardiology, which was the sole tenant and occupied the entire structure. The lease gave Khanna Realty no duty or control with respect to the inspection, repair, or maintenance of the leased premises. Additionally, the lease stated that Khanna Realty is not responsible for any damage to any person arising from any defect in the building. There was a hatch in the floor of the kitchen area of the building. The hatch was covered by a door, which, when removed, provided access to the basement. Plaintiff accidentally stepped into the open hatch and fell into the basement. Although plaintiff had brought claims against Metuchen Cardiology and Dr. Khanna, those claims were dismissed leaving Khanna Realty as the only remaining defendant. Khanna Realty moved for summary judgment, arguing it had no duty to inspect, repair, or maintain the building and owed no duty to plaintiff. Plaintiff counter-argued that Dr. Khanna’s common ownership of Khanna Realty and Metuchen Cardiology negated the provisions of the lease insulating Khanna Realty from responsibility for the inspection, repair, and maintenance of the building. The trial court found that Khanna Realty and Metuchen Cardiology were distinct entities that executed a lease with an “effective delegation of duties between landlord and tenant in which the tenant retained control over the subject property.” The court ultimately concluded that Khanna Realty owed no duty to plaintiff with respect to condition or use of the hatch. The appellate court, upon review, agreed with the trial court’s decision, stating that there was a valid lease between the parties that clearly delegated the responsibilities to the tenant, thereby establishing that Khanna Realty had no duty to inspect, repair or maintain the building at which plaintiff was injured. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Judge to FDA: Get Your FSMA Regulations Done Already. July 5, 2013 < Back Share to: As we have long reported, the FDA has been quite derelict in getting the new Food Safety Modernization Act regulations in place. Deadlines have come and deadlines have gone and still no guidelines. This delay has resulted in the case of Center for Food Safety, et al. v. Margaret Hamburg, et al., USDC, NDCA. There’s a history of decisions in the case that make clear the Court’s frustration with the FDA and that frustration has now boiled over. In a recent decision, the Court has ordered the FDA to publish all proposed regulations by November 30, 2013, with the comment period to end by March 31, 2014, and the final regulations to be published by June 30, 2015. We’ll see if a court order compels action where bureaucratic momentum did not. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News NJ Supreme Court Clarifies Public Entity Immunity Standard February 4, 2009 < Back Share to: In its recent decision in Ogborne v. Mercer Cemetery Crop., 2009 WL 196047 (2009), the New Jersey Supreme Court concluded that when the facts are reasonably debatable as to whether the employee’s actions or the condition of the property caused plaintiff’s accident, then the more stringent “palpably unreasonable” standard applies. Pursuant to the New Jersey Tort Claims Act, plaintiffs suing a public entity for a dangerous condition on its property must prove that the entity acted “palpably unreasonably” in not protecting against the dangerous property condition. By contrast, when a public employee’s actions cause plaintiff’s injury, the plaintiff need only prove ordinary negligence. In Ogborne, the plaintiff was accidentally locked inside a cemetery when a cemetery employee closed the entrance gates early. Thus, she was forced to climb a brick wall in order to exit, fracturing her tibia in the process. In keeping with the broad immunity provided in the Tort Claims Act, the Supreme Court determined that the higher “palpably unreasonable” standard should apply in determining the public entity’s liability. Thanks to Claudi Condruz for her contribution to this post. http://www.judiciary.state.nj.us/opinions/supreme/Supreme%2008.pdf Previous Next Contact

News Does COVID-19 Mean Quarantine? (PA) June 10, 2021 < Back Share to: In a recent order from the Eastern District of Pennsylvania, the court addressed the first of what is sure to be many cases stemming from cancellations of vacations and other travel due to COVID-19. This case was a putative class action filed on behalf of individuals who cancelled travel due to the coronavirus pandemic and whose claims for travel insurance claims were later denied by the defendant-insurer. The defendant-insurer moved to dismiss, and the court subsequently denied the motion on all grounds save for one breach of contract claim. Ultimately, the court decided that there were too many issues of fact to decide the case so prematurely, one such issue being the definition of the word “quarantine”. The plaintiff at issue had purchased a travel insurance policy from the defendant for a European adventure set to take place in late March 2020. On March 7, the plaintiff cancelled the trip due to COVID-19 and filed a claim with the defendant on March 12, which was denied. The plaintiff argued the denial was incorrect, as the policy language guaranteed up to full reimbursement for any covered reason, one of which was “being…quarantined.” Quarantine was not defined in the policy. The defendant-insurer argued that the term “quarantine,” based on the common meaning of the term, by no means applied to the large scale stay at home orders that were enacted to stop the spread of COVID-19. However, the court, recognizing the long-standing principle that an undefined, ambiguous term must be construed in favor of the insured, held there was still a question of fact to be addressed – particularly when considering this case dealt with lockdown procedures in the plaintiffs’ home states and cities as well as in all the destinations through and to which they were traveling. Going forward, it will be interesting to keep an eye on this action, as the plaintiffs all had different situations leading up to their travel claims, however, the one common denominator was COVID-19. Thanks to Abby Wilson for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News WCM Victorious on Statute of Repose in PA Construction Defect Lawsuit. July 17, 2020 < Back Share to: WCM Partner Bob Cosgrove and Philadelphia associate Zhanna Dubinsky won a motion for judgment on the pleadings in the Pennsylvania Court of Common Pleas, Chester County. In John Adams, et al. v. Wilkinson Enterprises, Inc., et al., the plaintiffs were the owners of luxury homes in the Chester County, Pennsylvania area who had purchased their new homes in 2003 and 2004. The plaintiffs alleged that after they assumed residency, their homes began to suffer from a myriad of construction defect problems. Our client was one of the contractors that had helped build the houses. Notwithstanding their claimed knowledge of the defects, plaintiffs did not commence their actions until December of 2016. We moved for judgment on the pleadings and argued that the lawsuit was untimely and a violation of the statute of repose. Pennsylvania’s statute of repose abolishes and eliminates causes of action that occur twelve years after completion of construction of an improvement to real property. The Honorable Edward Griffith agreed and entered judgment on the pleadings dismissing all claims against our client. For more information about this post, please contact rcosgrove@wcmlaw.com . Previous Next Contact

News A Stairway May Constitute a Safety Device Under NY's Labor Law September 23, 2010 < Back Share to: In Ramirez v. Shoats, 2010 N.Y. Slip Op 06550, plaintiff was injured when a piece of corrugated metal covering an unfinished landing of a newly constructed stairway slipped under his feet, causing him to fall from the second floor to the basement level of a building under construction. Plaintiff sought relief under Labor Law § 240(1), which provides that the owner of the premises can be held liable for failure to provide adequate safety devices for workers. The issue at hand was whether a permanent, yet unfinished stairway can constitute a safety device under the statute. In a 3-2 split decision, the Court held that the stairway was the plaintiff’s sole means of access to and from his work area and thus was a safety device within the meaning of the statute. The dissenting opinion noted that temporary ladders were on site which provided alternative means of descent and, in any event, prior case law in New York has determined that “under no construction of the statute could a permanently installed stairway, used by the plaintiff as a place of passage, be deemed to be a scaffold, hoist, stay, ladder, sling, hanger, block, pulley, brace, iron or rope.” Ryan v. Moerse Diesel, Inc., 98 A.D. 615 (1983). Unfortunately it seems that New York courts, yet again, have extended the grasp of the Labor Law. http://www.nycourts.gov/reporter/3dseries/2010/2010_06550.htm Thanks to Chris O'Leary for his contribution to this post. If you would like more information about this case or WCM's Labor Law practice, please contact mbono@wcmlaw.com Previous Next Contact