News PA Superior Court Addresses Landowner Liability. January 29, 2008 < Back Share to: In the case of Jones v. Levin (PICS Case No. 08-0110 (Pa Super. Dec. 31, 2007)), the Superior Court clarified the extent and scope of a landowner/employer’s responsibility for accidents suffered by the landowner’s employee in a public area (as opposed to an area where only employees have access). Relying on New York case law (as there was no dispositive PA case law on point), the Superior Court held that a landowner can be liable for employee injuries if said injuries occurred in a public area. http://www.superior.court.state.pa.us/opin.htm Previous Next Contact

News Now You See It... Now You Don't ... A Tale of Two Trivial Defects (NY) July 31, 2017 < Back Share to: Property owners have a duty to keep their premises safe, and to protect passersby from dangerous or defective conditions. While courts will generally let a jury decide whether a dangerous or defective condition exists, property owners may be entitled to move for summary judgment where they can show, as a matter of law, that the alleged dangerous or defective condition was “trivial.” How a landowner demonstrates that a defect is “trivial,” however, may affect whether they receive summary judgment. Two recent Second Department decisions, Kavanagh v. Archdiocese of the City of New York and Chojnacki v Old Westbury Gardens, Inc, demonstrate why landowners must take care to show, rather than tell, the court why an alleged defect is “trivial.” In Kavanaugh, plaintiff allegedly tripped and fell on an interior hallway tile while exiting a church owned by defendant. The Archdiocese moved for summary judgment, claiming that the alleged tile defect was trivial as a matter of law. In support of its motion, the Archdiocese submitted photographs of the alleged defect, measurements of the tile (which demonstrated that the defect involved, at most, a one-eighth inch height difference), and plaintiff’s own testimony of the time, place, and circumstances surrounding her injury. The trial court denied the Archdiocese’s motion, finding that an issue of fact existed as to whether the defect was “trivial.” The Second Department reversed the trial court on appeal and granted summary judgment to the Archdiocese. The court first noted that while there is no specific “dimension test” to determine whether a defect is “trivial,” the court should look the individual facts of the case, such as the measurements and appearance of the defect and the circumstances surrounding plaintiff’s injury, to determine whether the defect is “trivial” or actionable. The court then determined that the Archdiocese, via its photographic evidence and plaintiff’s testimony” met its burden of proof to show that the defect itself was insignificant, and that there was nothing about the defect itself or the surrounding area that would increase the risk of injury to people as they walked by the defect. On the same day that the Second Department granted summary judgment in Kavanaugh, it reversed summary judgment to the defendant landowner in Chojnacki, holding that the landowner had failed to establish that the alleged defect, a raised brick on a pathway, was “trivial” as a matter of law. The landowner submitted an expert affidavit and photographic evidence from the plaintiff depicting her on the ground shortly after she fell. However, the court noted that it could not see the raised brick on which she allegedly fell in the submitted photographs, and therefore could not tell whether the defect was in fact “trivial” or not. When it comes to demonstrating that a defect is “trivial,” more evidence is better! High-quality photographs of the alleged defect and the surrounding area—with measurements—will go a long way towards showing the court why the alleged defect is not actionable. Absence of such evidence is noticeable, and likely fatal to any summary judgment motion. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Defendant Fails to Raise Sufficient Grounds to Vacate Arbitral Award April 19, 2024 < Back Share to: In Jesan Construction Group, LLC v. 3125-3129 Summit Avenue, the Appellate Court upheld an arbitrator’s interpretation of a New Jersey law and the accompanying $433,690 judgment against Defendant. Plaintiff Jesan Construction Group was hired by Defendant 3125-3129 Summit Avenue to perform concrete and masonry work on the Summit Avenue property in Union City. Plaintiff was on schedule from September 2015 through January 2016, at which point they asked for partial payment and Defendant declined. In August 2020, the parties entered into an agreement to arbitrate. The parties exchanged written discovery and the arbitrator concluded that the Defendant never paid Plaintiff for their services because one of the checks issued was never cleared. Under New Jersey case law, an "arbitrator's factual determinations concerning the merits of the dispute submitted to him are not reviewable by the court." Ukranian Nat'l Urb. Renewal Corp. v. Joseph L. Muscarelle, Inc. , 151 N.J. Super. 386, 396 (App. Div. 1977). Appellate Courts may review arbitration decisions under the plain error standard, and may overturn arbitration awards if “the award was procured by corruption, fraud, or other undue means." N.J.S.A. 2A:23B-23(a). Defendant argued that the arbitrator erred as a matter of both fact and law because 1) the parties were not in privity of contract; 2) liability was not determined under New Jersey law; 3) the arbitrator impermissibly relied on a mediation letter in making their decision, and 4, the arbitrator did not articulate a cause of action upon which the award was granted. However, the Court was not swayed by any of these arguments. First, Defendant admitted in the initial Answer that there was a signed contract between the parties, thereby admitting privity. The Court dismissed both the liability argument and the cause of action argument and found that the arbitrator sufficiently explained their findings. Lastly, the Court dismissed the mediation letter argument because this was not addressed with the trial judge previously. This case serves as a reminder to consult legal counsel prior to signing a binding arbitration agreement. Arbitrators have broad power in New Jersey and their decisions are typically binding and will only be vacated on very limited grounds. Jesan Construction Group, LLC v. 3125-3129 Summit Avenue, LLC .pdf Download PDF • 70KB Previous Next Contact

News Game Changing NJ Supreme Decision Impacts Boardable Medical Expenses in NJ PIP Cases April 3, 2019 < Back Share to: The New Jersey Supreme Court issued a decision in Haines v.Taft that will have a significant impact on how plaintiffs present their damages in motor vehicle accident cases. Each plaintiff in this appeal before the New Jersey Supreme Court was injured in a car accident, and was insured under a standard policy with a $15,000 PIP coverage limitation, rather than the default amount of $250,000. Drivers often elect for the $15,000 PIP coverage to pay lower insurance premiums. However, when accidents occur, medicals often exceed the amount of their insurance coverage, as was the case in Haines. Each plaintiff filed a personal injury claim for outstanding medical provider charges in excess of their elected PIP coverage. Defendants moved to preclude plaintiffs from presenting evidence of medical expenses that exceeded their $15,000 PIP limits. In opposition, plaintiffs maintained that the medical bills exceeding PIP coverage constitute “economic loss” and should be admissible as defined in N.J.S.A. 39:6A-2(k). The trial courts ruled against plaintiffs in each matter and barred plaintiffs from admitting evidence of their medical expenses that exceeded their $15,000 PIP limits. The Appellate Division consolidated the cases on appeal, and reversed both trial court orders. The NJ Supreme Court then granted defendants’ petitions for certification. The Court analyzed the legislative history and the intent of No-Fault laws. It found that the Automobile Insurance Cost Reduction Act (AICRA), sought to preserve the no-fault system, while at the same time reducing unnecessary costs which drive premiums higher. AICRA changed the arbitration process used for benefit disputes, established bases for determining whether treatments and diagnostic tests are medically necessary, revised the threshold for suits for non-economic loss, and created insurance options with decreased coverage in return for lower premiums. AICRA’s regulatory scheme sought to keep premiums at a manageable level, ensuring that benefits were paid according to their medical necessity and created a “verbal threshold” that barred minor claims from inundating the court system. The NJ Supreme Court, upon review of the legislative intent of the AICRA, found that efforts to subject medical costs to careful review through extensive regulatory programs would be undercut by the ability of a third party to sue for medical expenses above their PIP policy coverage limit but below the presumptive amount of $250,000. Those lawsuits would commandeer the judicial resources that the AICRA enacted to preserve. The Court found that if they interpreted the law through plaintiff’s perspective, wherein medical bills exceeding the PIP coverage constitute “economic loss” that should be admissible, it could create the absurd consequence whereby someone who chooses a lower PIP coverage option could receive a higher overall reimbursement than one who elected for a $250,000 PIP coverage policy. The Court determined that under the No-Fault Law, the ability to sue is the exception, not the rule. The Legislature has determined that the benefits of creating limited but automatic medical reimbursement for injured motor-vehicle-accident victims outweigh the ability of a minority of injured parties to recover larger amounts in tort. As such, the Supreme Court reversed the decision of the appellate Division. Thanks for Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Plaintiff’s Typo Leads To No Liability Coverage For The Insured July 17, 2012 < Back Share to: On June 27, 2003, Merrimack Mutual Fire Insurance Company had an insurance policy in effect providing liability coverage to 25 Avenue C New Realty, LLC. On June 27, 2005, Alea North America Insurance Company had an insurance policy in effect providing liability coverage to 25 Avenue C. Eamonn Grimes filed a lawsuit against 25 Avenue C to recover for personal injuries sustained on 25 Avenue C’s property on June 27, 2005. 25 Avenue C gave timely notice of the claim to Alea. Alea then undertook the defense of this case and assigned defense counsel. In May 2007, an investigator discovered that the accident actually occurred on June 27, 2003, not June 27, 2005. In August 2007, defense counsel received a bill of particulars from Grimes stating the accident occurred on June 27, 2003. On October 4, 2007, defense counsel took the deposition of a nonparty witness who testified that Grimes’ accident occurred on June 27, 2003. Inexplicably, it was not until May 15, 2008 that Alea’s third-party claims administrator spoke with 25 Avenue C and determined that Merrimack was the actual insurer on June 27, 2003. At that point, defense counsel tendered the defense to Merrimack and notified them that Alea’s policy was not in effect at that time. Thereafter, on July 8, 2008, Merrimack rejected Alea’s tender on the grounds that it was not given timely notice of the claim. Alea then advised 25 Avenue C on August 11, 2008 that it was declining coverage because the actual date of the incident predated coverage. 25 Avenue C then brought this action seeking a declaration that either Alea or Merrimack was obligated to defend and indemnify them in the underlying personal injury action. The Supreme Court granted 25 Avenue C’s motion for summary judgment against Merrimack, finding that Merrimack was obligated to defend and indemnify 25 Avenue C as Merrimack “was notified within a reasonable time under the facts and circumstances and there is no apparent prejudice, as discovery is ongoing.” The court also granted Alea’s motion for summary judgment, allowing Alea to bow out. The Appellate Division upheld the decision as to Alea, but reversed in favor of Merrimack, finding that under these facts, the five-year delay in notifying Merrimack was unreasonable. The Appellate Division found fault in Alea, stating that Alea should have notified 25 Avenue C as early as May 2007, and that Alea’s attorneys were conclusively aware in August and October of 2007 that the correct date of the accident was June 27, 2003, not June 27, 2005. Further, the court was critical of Alea’s third-party claims administrator for waiting until May 15, 2008 to contact 25 Avenue C to determine which insurer covered the premises in June 2003. This decision leaves 25 Avenue C without coverage from either Merrimack or Alea in the underlying personal injury suit. Given the mistakes made and the language in this decision, it will be interesting to see which party 25 Avenue C goes after. Thanks to Michael Nunley for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04672.htm   Previous Next Contact

News The Climb (up the ladder) to Contractual Indemnification (NY) April 3, 2018 < Back Share to: In Wojciech v. Schafer Mews Housing Development, et al., plaintiff, an electrician, was injured when he fell from a makeshift wooden ladder while helping to unload supplies. The ladder was approximately five feet above ground to the first-floor slab of the building under construction. Although plaintiff’s employer provided an A-frame ladder, plaintiff was unable to use it to access the slab because the ground was covered in dirt, debris, and rocks. The First Department determined that plaintiff’s decision to use the makeshift ladder, which other employees were also allegedly using, was not the sole proximate cause of the accident where he was never instructed not to use it. Additionally, were no proper safety device was provided, the fact that plaintiff’s boots may have been untied or that he may have descended the ladder backwards was not the sole proximate cause of his accident. The court further determined that plaintiff’s accident arose from the means and methods of accessing the slab. Since there was no dispute that plaintiff was supervised and solely directed by his employer, Demand Electric, Inc., the owner defendants, Mega Contracting Group LLC and Schafer Mews Housing Development Fund Corporation, were not negligent in the happening of the accident. Based on the forgoing, the First Department affirmed the motion court’s decision granting the owner defendant’s motion to summary judgment on their claim against Demand Electric, Inc. (plaintiff's employer) for contractual indemnification. Plaintiff’s employer was solely responsible for providing plaintiff with the materials and equipment that proved to be inadequate for the task of carrying supplies up to the first floor slab. Where there was no evidence that the owner defendants supervised, directed, or provided equipment to plaintiff, the court found that they were not negligent for the accident and entitled to contractual indemnification from plaintiff’s employer. Thanks to Alicia Massidas for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Biomechanics Opinion Of Low Speed Crash Sufficiently Scientific? (NY) October 25, 2017 < Back Share to: The biomechanics of vehicle occupants involved in low-speed collisions is a potential defense to personal injury claims. However, any proffer of expert biomechanical testimony should be prepared to meet the test for admissibility, i.e. proof that the opinion is based upon generally accepted principles and methodologies. In Dovberg v. Laubach, the plaintiff was involved in a low speed chain reaction motor vehicle accident. After securing summary judgment against the defendants on the issue of liability, the parties proceeded to a damages-only trial. Prior to trial, defendants served an expert disclosure notice advising that they were going to call a biomechanical engineer/board-certified surgeon to opine that the force generated by the accident could not have caused the plaintiff’s knee injuries. The disclosure notice indicated that the proposed testimony was based on deposition testimony and on the plaintiff’s medical records. It also noted that the doctor’s opinion was based on scholarly works that had gained general acceptance in the field. Plaintiff’s counsel filed a motion in limine to preclude the testimony because it made no reference to any empirical data or peer-reviewed journals, studies, treatises, or texts. The lower court denied the motion, the doctor testified at trial, and the jury concluded that the accident was not a substantial factor in causing the alleged injuries. On appeal, the Second Department reversed the lower court’s decision and found that the defendant’s expert failed to pass the Frye test. Specifically, the defendants failed to establish that their expert’s opinion was based on generally accepted principles and methodologies. They noted that the rule does not require the majority of the scientific community to agree with the expert’s conclusion but, rather, the scientific community must accept the principles and methods used in evaluating the clinical data used to come to his conclusions. The court concluded that the defendants failed to describe the methods used by their expert in drawing his conclusions and failed to provide specifics for the publications relied on including the authors, years of publication, and contents of the works. The court also faulted the proffer for failing to provide a description of the methodology used to determine the force of the accident and the biomechanical engineering principles applied in formulating his opinion that her knees could not have contacted the dashboard. Thanks to Georgia Coats for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .     Previous Next Contact

News PA Court Clarifies When Use Of Plaintiff's Behavior Can Be Used In Products Liability Cases September 28, 2010 < Back Share to: In a recent products liability case, the PA Superior Court clarified when a defendant in a products liability case can introduce evidence of the plaintiff’s behavior. In the case of Reott v. Asia Trend et. al., the court explained that there are only three limited circumstances when a defendant is permitted to introduce evidence of a plaintiff’s behavior in a strict liability products liability case. These are voluntary assumption of risk, misuse of the product and highly reckless behavior. This case involves a plaintiff, Duane Reott, who was injured while attempting to use a tree stand manufactured by the defendants. The plaintiff failed to use the device as prescribed by the instruction manual. However, the device also did not work properly. The issue at trial focused mainly on whether the wrongful use of the tree stand by the plaintiff counted as highly reckless behavior. The court was confronted with the issue of whether the defendants had met their burdens of proof. The court confirmed that highly reckless conduct is an affirmative defense that must be proven by the defendant by a preponderance of the evidence. In order to prove reckless conduct, the defendant must show that the plaintiff (1) knew of facts which created a significant risk of physical harm or that plaintiff “deliberately proceed to act, or failed to act, in conscious disregard of that risk,” and (2) that the plaintiff’s conduct was the sole or superseding cause of the injury. In this appeal the court ruled that the defense had not proven that Reott’s injury was the sole or superseding cause of his injury, thus he was entitled to a directed verdict on the issue. Thanks to Remy Lapidus for her contribution to this post. http://www.aopc.org/OpPosting/Superior/out/a25020_10.pdf Previous Next Contact

News Charitable Immunity Prevails Even Where Non-Profit Rents to For-Profit Organization (NJ) August 31, 2017 < Back Share to: The New Jersey Charitable Immunity Act (CIA) bars negligence claims against nonprofit corporations organized exclusively for religious, charitable, or educational purposes. An entity qualifies for charitable immunity when it is formed for non-profit, educational, religious or charitable purpose, and was promoting such objectives and purposes at the time of the injury to a plaintiff who was a beneficiary of the organization’s works. In Losado v. Princeton University, the court examined whether Princeton University, a non-profit educational organization, was entitled to Charitable Immunity when the plaintiff was injured on its campus. The key question was whether the University was engaged in its educational objectives when renting a pool on campus to an outside organization. The plaintiff's daughter participated in a swim meet hosted by the Princeton Tigers Aquatic Club, an organization not affiliated with the university other than pool rental. The plaintiff was injured in a fall as she left the swim meet when she stepped into a depression adjacent to a walkway. Princeton University filed a motion for summary judgment, arguing that they were immune from suit under the CIA. The motion judge found that the plaintiff was a beneficiary of the University at the time of her injury, and therefore dismissed the claim under the CIA. On appeal, the plaintiff argued that the Judge erred since the renting of a facility on the campus was not part of the “educational pursuits” that the University was organized to advance. Specifically, the plaintiff argued that youth sports by an outside organization was not an educational objective that Princeton was organized to advance. They further noted that the PTAC was not a charitable organization. Per statutory requirement, the Appellate Court liberally construed the CIA to afford immunity to a non-profit entity even when renting facilities to members of the general public for social and recreational activities. So long as the non-profit facility is not dominated by rentals of for-profit entities, the use of the facilities serves important social and recreational needs of the community. Importantly, this case affirms once again that an organization is entitled to charitable immunity even when renting a portion of its property to a non-charitable organization. These type of rental agreements are common between organizations, and will not prevent the non-profit entity from asserting and succeeding on a charitable immunity defense. Thanks to Heather Aquino Obregon for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Mischievous Raccoons Can’t Be Malicious (PA) November 7, 2019 < Back Share to: The Western District of Pennsylvania recently decided an unusual case in Capital Flip v. American Modern Select Insurance Co.: whether a raccoon damaging a house was covered under a dwelling insurance policy pursuant to a vandalism or malicious mischief rider. Specifically, this case presents as a dispute between Capital Flip LLC and its insurer, American Modern Select Insurance Co. pursuant to a homeowners’ dwelling policy. At some point it was discovered that raccoons had entered the property and did what racoons normally do (malicious or not) – cause substantial damage. Capital Flip subsequently sought coverage under the policy, pointing to a clause covering losses arising from “vandalism or malicious mischief.” American Modern denied coverage and this lawsuit followed. American Modern filed a motion to dismiss, contending that damage caused by raccoons simply could not be covered under the vandalism or malicious mischief clause, as animals cannot have subjective intention. Capital Flip argued that the policy did not define “vandalism or malicious mischief”, thus rendering it possible those terms encompassed damage by animals. The Court agreed with American Modern, holding that under reasonable definitions of “mischief” and “vandalism”, a subjective intent combined with an intended unfavorable result was required – and raccoons simply did not have that intellectual ability. Put simply, despite creative thinking, these terms require human actions. Despite the popular opinion that racoons are malicious, this is yet another instance where the Courts simply disagree. Thanks to Matthew Care for his contribution to this post. If you have any questions, please email Georgia Coats. Previous Next Contact

News Failure To Advise Insured Of Right To Independant Counsel Could Be A Deceptive Practice June 11, 2008 < Back Share to: In Elacqua v. Physicians’ Reciprocal Insurers the Appellate Division, Third Department held that a carrier’s failure to affirmatively advise an insured that, when the existence of both covered and uncovered claims creates a conflict of interest between the carrier and insured the insured is entitled to obtain independent counsel at the carrier’s expense, is a deceptive practice under General Business Law 349. The same court ruled in 2005 that a carrier has the affirmative duty to advise the insured of its right to independent counsel, a decision in conflict with an earlier First Department case. The key fact supporting the deceptive practice claim was that the carrier’s practice was not to inform an insured of its right to independent counsel, thus making the offending practice consumer-oriented, not just a private dispute with this particular insured. http://decisions.courts.state.ny.us/ad3/decisions/2008/502964.pdf Previous Next Contact

News New Jersey Supreme Court Allows Testimony Of Biomechanical Expert In Low Impact Crash Case. March 11, 2008 < Back Share to: In Hisenaj v. Kuehner, the Supreme Court found that expert testimony based on data from low impact crashes with human test subjects was properly admitted in a fender bender accident that resulted in a low jury verdict. The case was watched closely by both the plaintiff and defense bars and drew amicus curiae appearances from the Association of Trial Lawyers of America-New Jersey (ATLA) and the New Jersey Defense Association. http://www.judiciary.state.nj.us/opinions/supreme/A-86-06%20Hisenaj%20v%20Kuehner.pdf Previous Next Contact