News First Department Holds Conjecture is Insufficient to Raise a Triable Issue of Fact in Pedestrian Accident March 29, 2024 < Back Share to: In McHugh v. Peduto Construction Corp, et al , Plaintiff alleged he tripped and fell over a pothole in the road near a construction site. Defendant/Third-Party Defendant Peduto Construction Corp. filed a motion for summary judgment on the grounds that it performed work only on the sidewalk, not in the road. In support of its motion, Peduto submitted documentary evidence and testimony reflecting that it was hired by Con Edison to mend a cut made by Con Edison on the sidewalk only. Despite this evidence, the Supreme Court denied Peduto’s motion. The Appellate Division, First Department, reversed, holding that Plaintiff failed to raise an issue of fact in response to Peduto’s motion for summary judgment. The Court held that in order to raise a triable issue of fact, Plaintiff had to prove a “finding of proximate cause based not upon speculation, but upon the logical inferences to be drawn from the evidence.” Flores v. City of New York , 29 A.D.3d 356, 358 (1st Dep’t 2006). The Court highlighted that deposition testimony that Con Edison would sometimes provide verbal instructions to contractors, without evidence Con Edison did so in the instant matter, was insufficient to raise an issue of fact because it was “merely surmise or conjecture.” McHugh v. Peduto Construction Corp. et al. , 2024 NY Slip Op 01515 (1st Dep’t 2024). The Court further noted that such an inference contradicted Peduto’s testimony that verbal orders from Con Edison would be reflected in a work order inspected by Con Edison. Finally, the Court addressed Plaintiff’s argument that the “geographic and temporal proximity of Peduto’s work” created an issue of fact as to whether Peduto performed work in the subject location. Id. The Court held this argument was speculative and unavailing. McHugh v. Peduto Constr. Corp. .pdf Download PDF • 1.09MB Previous Next Contact

News Overpowering Food Odors Not Pollution Under CGL Policy August 4, 2010 < Back Share to: In Barney Greengrass Inc. v. Lumberman's Mutual Casualty Co., 09 Civ. 7697 (S.D.N.Y. 2010), the insured -- a well-known Manhattan deli celebrated for its sturgeon -- was sued by its landlord for claims by a resident that “overpowering food odors” emanating from the deli caused his apartment to be uninhabitable. The deli tendered the claim to its insurer who then disclaimed on the grounds of the pollution exclusion. The federal court ruled that the “pollution” exclusion does not apply to restaurant odors because a reasonable insured would not understand the exclusion to cover the natural byproduct of its business for which it is celebrated. The court pointed to a Zagat survey of the restaurant that stated: “The smells alone are worth the price of admission.” http://cityroom.blogs.nytimes.com/2010/08/02/in-many-ways-judge-says-insurers-argument-stinks/ http://pdf.wcmlaw.com/pdf/Greengrass.pdf Thanks to Mendel Simon for his contribution to this post. Previous Next Contact

News Take Notice! July 19, 2024 < Back Share to: Last week the U.S. Court of Appeals Third Circuit upheld a District Court’s order granting summary judgment to Home Depot USA, Inc. in a slip and fall case. Pro se plaintiff Anastasios Smalis (“Smalis”) alleged that he slipped and fell in a restroom of a Pittsburgh Home Depot. He observed water on the floor after he fell, but he “did not know the source of the water or how long it had been there and – being startled from his fall – did not notice anything that could have caused the floor’s hazardous condition.” Smalis v. Home Depot U.S.A., Inc. , No. 24-1094, 2024 WL 3372917, at *1 (3d Cir. July 11, 2024). Thereafter he commenced a state court lawsuit against Home Depot, which then removed the case to the U.S. District Court. On December 7, 2023 the District Court granted Home Depot’s motion for summary judgment against Smalis, finding that “there [was] no evidence Home Depot caused the water in the men’s restroom nor that it had actual notice of it,” and that Smalis failed to present evidence as to how long the water had been present on the floor prior to his fall, thus preventing him from establishing Home Depot knew the water was on the floor and therefore had constructive notice of the condition. Id. Some 32 days after the Court’s summary judgment decision was entered, Smalis filed a motion for reconsideration which was denied as untimely. Smalis appealed. The Third Circuit upheld the District Court’s summary judgment decision for substantially the same reasons set forth in the District Court’s opinion. As for Smalis’ motion for reconsideration, the Third Circuit also upheld the District Court’s decision, as the Federal Rules of Civil Procedure provide that any motion for a new trial or to alter or amend a judgment must be filed within 28 days of the entry of judgment. As Smalis failed to file his motion within the required 28 day period (32 days) his motion was properly denied as untimely. Id. This decision, while brief, demonstrates the importance of filing a summary judgment motion in a slip and fall case where Plaintiff has failed to present evidence to establish actual or constructive notice. It also reminds us of the importance of adhering to filing deadlines when moving to alter or amend judgment, or, moving for a new trial. Smalis v. Home Depot USA Inc. .pdf Download PDF • 136KB Previous Next Brian T. Noel Brian T. Noel Partner +1 267 331 3891 bnoel@wcmlaw.com Contact

News I Wasn’t Aware; Isn’t Enough (PA) August 8, 2019 < Back Share to: In Peters v. Wellsboro, the Pennsylvania Superior Court recently ruled on whether a plaintiff carried her burden establishing that a landowner breached its duty of care. Specifically, one evening, Helen Peters was dining at the Penn-Wells Hotel in Wellsboro, Pennsylvania, with her husband. As they left the hotel/restaurant, Peters slipped and sustained injuries. She claimed that she fell on a step that was unsafe, insufficiently lit, and generally posed a hazard to anyone exiting the restaurant. Peters and her husband filed suit against the hotel, claiming, primarily, negligence. During discovery, Peters was deposed and testified that she missed the allegedly dangerous step because she did not realize it was there and its presence needed to be more pronounced. At the close of discovery, the defendants moved for summary judgment, arguing that Peters and her husband failed to show any breach on their part caused Peters to fall. The trial court granted the motion, dismissing the case. Peters appealed. In any claim for negligence under Pennsylvania law, the claimant must show that the defendant owed a legal duty and that the duty was breached, causing harm to the claimant. A business invitee, like a restaurant or hotel patron, such as Peters, is owed the highest level of care. Accordingly, the landowner has an affirmative duty to protect the invitee from all known dangers, as well as those dangers that could be discovered with reasonable care on the landowner’s part. Applying this standard, the Superior Court, ultimately, agreed with the trial court’s ruling reasoning the only evidence Peters had produced to establish a breach of that duty was her testimony that she was unaware of the step. According to the Court, this was insufficient to establish that the hotel breached its duty to Peters, and, thus, the Court affirmed the trial court’s decision. Accordingly, this case illustrates that a plaintiff-invitee’s lack of awareness of an allegedly dangerous condition, alone, will likely be insufficient to prove that a landowner breached its duty of care to the invitee. Thanks to Robert Turchick for his contribution to this post. Please email Colleen E. Hayes with any questions Previous Next Contact

News Happy Thanksgiving to One and All From Your Friends at WCM. November 25, 2009 < Back Share to: And for those who are interested, the official White House Turkey pardon is scheduled for 11:28 this morning. http://www.whitehouse.gov/live Previous Next Contact

News No Constructive Notice Claim For Roller Coaster Stoppage Injury (NY) April 21, 2023 < Back Share to: To prove constructive notice in a New York premises liability case against a commercial property owner, a plaintiff must show that a defect was visible and apparent and must have existed for a sufficient period of time prior to the accident to permit a defendant’s employees to discover and remedy it. In J. G. v. L.I. Adventureland the Appellate Division, Second Department, addressed this issue in a case where the infant plaintiff alleged emotional injuries after getting stuck on a roller coaster at an amusement park. The ride came to an unexpected stop approximately 5 to 7 feet above the ground and the plaintiff was rescued after 15 minutes. The defendants moved for summary judgment on the grounds that, among others, they did not create the allegedly dangerous condition and did not have actual or constructive knowledge of it. The Supreme Court granted the motion, and plaintiff appealed. Plaintiff argued that the defendants failed to establish that they lacked constructive notice since the ride had stopped on previous occasions. The Court observed that a “party… who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of that condition.” However, it also noted that general awareness that the coaster had stopped in previous years is insufficient to legally constitute notice of the particular condition that caused the incident at issue. The Court found that the defendants demonstrated that they did not have constructive notice of any alleged dangerous condition as they submitted evidence that they inspected the roller coaster on the day of the incident, did not find any defects, did not receive any complaints about the roller coaster prior to the incident, and operated the roller coaster without any problems before the incident occurred. Since plaintiff failed to raise a triable issue of fact, the Court affirmed the lower court’s decision. This decision echoes the longstanding rule in New York that a property owner must have enough time to discover and remedy a defect in order to have exposure under a constructive notice claim. It also highlights the importance of conducting regular inspections and maintaining accurate records to establish a solid defense in premises liability claims. Thank you to Rebecca Pasternak for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Fine Print Ramifications of Cruise Ship Contracts Continue: Victims of Costa Concordia Likely Will Not Find Relief in U.S. Courts January 24, 2012 < Back Share to: The recent Costa Concordia shipwreck in Italian waters has raised the often discussed question of whether United States citizens can seek relief in U.S. Courts based on injuries occurring on cruise ships outside U.S.waters. The Costa Concordia passengers’ tickets included language providing that all claims against it would be brought in the Courts of Genoa, Italy. U.S.Citizens have challenged similar contracts in the past, arguing that to litigate in a foreign country would be too burdensome. In August 2010, the Eleventh Circuit Court of Appeals affirmed a dismissal of a lawsuit against Regent Seven Seas Cruises, whose printed passenger tickets called for all claims not involving a U.S. Port to be brought in Paris. The court found the argument that foreign litigation would be too burdensome not to be persuasive over the plain language of the contract. Legal experts believe that this court precedent will continue to apply to the recent tragedy aboard the Costa Concordia. http://www.insurancejournal.com/news/national/2012/01/17/231285.htm For the complete Eleventh Circuit Court opinion, http://www.ca11.uscourts.gov/unpub/ops/201010810.pdf Thanks to Andrew Marra for his contribution to this post.   Previous Next Contact

News Fall From Ladder Not Necessarily Labor Law Related (NY) November 23, 2016 < Back Share to: Just because construction work is underway on property, Labor Law §§ 200, 240(1), and 241(6) do not automatically apply to claim for an unrelated injury. In Mammone v. TG Nickol & Associates, LLC, the plaintiff school maintenance worker was injured while working on roof mounted air conditioning units. Upon dispatch to the location, he climbed a permanently affixed ladder to reach the units, which he successfully repaired. After completing the repair, plaintiff determined the air filters on the units needed to be replaced. On his way back up the ladder to perform this task, he fell off the ladder and was allegedly injured. Plaintiff commenced this action against various defendants, including TG Nickel, who was the construction manager for the construction work happening at the high school at the time of the accident. The lower court found that TG Nickel established prima facie that plaintiff was neither engaged in an activity listed under 240(1) at the time of his accident nor was he performing construction, demolition, or excavation as described in 241(6), and dismissed these causes of action. The Appellate Division, Second Department, determined that the Supreme Court had properly dismissed these alleged violations of the Labor asserted by plaintiff against TG Nickel. With respect to Labor Law § 200, liability exists against a defendant if there is evidence of a defective or dangerous condition at a work site that a defendant had or should have had knowledge of, or if that defendant had control over the means and methods of plaintiff’s work which caused the alleged injury. TG Nickel had argued to the lower court that the ladder used by plaintiff was not defective, a fact which plaintiff conceded. The lower court dismissed this cause of action based on TG Nickel’s lack of actual or constructive notice of any dangerous or defective condition of the ladder. However, the Appellate Division found this was not the properly applied standard for evaluation of TG Nickel’s liability, as the plaintiff was allegedly injured as a result of the manner in which he performed his work, not because of any condition of the work site. Therefore, recovery against TG Nickel could only be found if it had the authority to supervise or control the means and methods of plaintiff’s work, which TG Nickel established that it did not. Accordingly, although applying a different standard, the Appellate Division affirmed the lower court’s dismissal of the common law negligence and Labor Law violation allegations against TG Nickel. Thanks to Lauren Tarangelo for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News When a Verdict’s Too Good to be True (NY) January 18, 2019 < Back Share to: A recent Second Department decision in Avissato v McDaniel reminds defense practitioners the best time to settle a case may in fact be after an apparent victory. The underlying fact pattern is a common one: plaintiff was stopped at a red light when defendant driver rear-ended plaintiff’s vehicle. Unsurprisingly, plaintiff prevailed on a summary judgment as to liability and the case proceeded to a trial as to damages. 2019 NY Slip Op 00084 (2d Dep’t. 2019). The jury found the accident was the proximate cause of plaintiff’s injuries and resulted in a permanent consequential limitation of use of a body organ or member as a result of the accident—in other words, they found plaintiff’s injuries qualified as a serious injury under the Insurance Law, and that plaintiff would have symptoms moving forward into the future. However, the jury award was for $12,500 for past pain and suffering and $12,500 for past medical expenses with no award for future damages. Although plaintiff’s motion to set aside the verdict as against the weight of the evidence was initially denied, on appeal, the Second Department reversed and remanded for a new trial on the issues of damages for past and future pain and suffering. The Second Department reasoned the verdict was inconsistent in awarding no damages for future pain, given their conclusion plaintiff had sustained a permanent injury, and that the award for past damages was too low. We do not know the details of any settlement negotiations. However, one suspects defendants were pleased with the jury verdict, despite the obvious inconsistencies it contained. Instead of reaching an economical settlement at that point with the leverage of the verdict in their pocket, defendants are now faced with the costs of a second trial and opposing plaintiff’s successful appeal. Even in a moment of victory, defendants should evaluate whether a settlement is the best option anyway. Thanks to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Superior Court holds Window Manufacturer Can’t Be Held Liable for Tort Damage Caused in Construction of Home May 17, 2024 < Back Share to: For construction defect actions in Pennsylvania, the Economic Loss Doctrine and Gist of the Action Doctrine are often brought as defenses against tort claims. The Economic Loss Doctrine bars Plaintiffs from attempting to recover for a tort theory such as negligence when a contract action is perfectly suited to provide an adequate recovery for loss. So, contractors would have a defense to Plaintiffs’ claims by stating that the claims were better suited for a breach of contract claim than a negligence claim. Prior to Johnson v. Toll Brothers , Plaintiffs had a consistent rebuttal, as Pennsylvania will not find that the economic loss doctrine barred claims if damage occurred to “other property”, other than the product at issue. For construction cases, Plaintiffs would argue that defective items in a home, such as a door, would cause damage to other parts of a house, by say the door allowing in water damaging the floorboards. But, in Johnson v. Toll Brothers , the Superior Court evaluated a case in which defective windows caused water to leak into the house, damaging the interior of the home. The water damaged the floor, drywall, and nearby doorframes. The owners of the home, Lee and Victoria Johnson brought claims against the builders of the home, Toll Brothers Inc. and their subcontractors, including the window subcontractor Andersen Windows, alleging negligence and products liability claims. The Windows moved for summary judgement on the economic loss doctrine, stating that the claim was better suited for breach of contract claims. The Johnsons countered stating that the windows leaking caused damage to “other property”, specifically the other parts of the home. The Superior Court held that a residence “is akin to a single product that is the sum of its component parts”. When a home is sold, it is sold as one product to the purchaser. So, any damage caused by a part of the home solely damages the home itself, and that additional damage does not count as “other property” to avoid the economic loss doctrine. Therefore, this common defense from Plaintiffs is significantly less effective, resulting in greater success with an economic loss doctrine, making claims by a subcontractor being more likely to be dismissed. Johnson v. Toll Brothers Inc .pdf Download PDF • 352KB Previous Next Contact

News When A Jury Verdict "Shocks The Conscience" (PA) May 2, 2018 < Back Share to: After several rounds of appeal, the plaintiff in a personal injury case was awarded a new trial following a jury verdict that the court determined was unjust. In Themens v Spranger, No. 1675 EDA 2017 (Pa. Super 2018), the Pennsylvania Superior Court affirmed an April 27, 2017 Order in which the trial court granted Themens’s appeal for a new trial. The underlying case involved a motor vehicle accident in November 2012, in which S. Spranger’s vehicle collided with Themens’s vehicle in Chester County, Pennsylvania. Themens was taken to the hospital and was diagnosed with cervical and lumbar strain/sprain and whiplash injuries. Themens continued to complain of sciatica, lower back and leg pain, and neck and shoulder pain for years following the accident. Themens also alleged that, as a result of her injuries suffered in the accident, she could was forced to miss time performing her secretarial duties for her husband’s business, and could no longer care for her grandchildren, visit her mother, or swim and exercise as she had done before the accident. In December 2014, Themens was awarded $12,160 in damages following a magisterial district court decision, which the Sprangers appealed. Themens was then awarded $25,000 by an arbitration panel following the magisterial district court appeal. The Sprangers appealed the arbitration award to the court of common pleas. Prior to trial, S. Spranger admitted that she failed to see Themens’s vehicle before striking it with her vehicle, and therefore stipulated that she was negligent. Thus, the jury trial in the court of common pleas was limited to the issues of causation and damages only. In addition to testimony from an insurance inspector, Themens, and Spranger; both parties also offered medical expert reports that were introduced by stipulation and read to the jury. Themens’s medical expert report diagnosed Themens with various lower back, spine, lumbar, and radiating lower extremity injuries, which prevented Themens from returning “to her pre-injury baseline.” The report also opined that Themens’s complaints were the direct result of the injures she sustained in the motor vehicle accident. In response, Spranger’s medical expert report was also read to the jury and noted the absence of objective findings and opined that Spranger’s medical expert was unable to identify a condition that would produce a disability related to the motor vehicle accident. In December 2016, the jury awarded Themens $2,000 in damages for past, present, and future pain and suffering, embarrassment and humiliation, and loss of enjoyment of life. Themens appealed for post-trial relief in the form of a new trial, claiming that the damage award was grossly inadequate to fairly compensate her for her injuries. In April 2017, the trial court issued an order granting Themens a new trial, which Spranger appealed arguing that the trial court’s issuance of a new trial constituted an abuse of discretion because the jury verdict did not ‘shock the conscience’ and the damages were not against the weight of evidence. In its decision affirming the trial court’s granting of a new trial, the PA Superior Court emphasized that Spranger stipulated that she was negligent and that Themens’s medical expert report diagnosing her injuries was uncontroverted. The Court went on to define “uncontroverted” as “evidence which is unopposed or unchallenged, not merely uncontradicted,” and further explained that it is not necessary that an opposing party introduce affirmative countervailing evidence, but rather that effective cross-examination and argument may suffice. The Court then found that the trial court’s decision that the jury’s verdict was an injustice that bore no reasonable relationship to the loss suffered by Themens did not constitute an abuse of discretion by the lower court. In reaching its decision, the Superior Court noted that, not only did Spranger concede negligence, but Themens’s medical expert was essentially uncontroverted because the medical expert report presented by Spranger failed to offer an opinion that Themens was not injured in the accident or that Themens’s injuries were not caused by the motor vehicle accident. This case, in which the defense achieved a favorable $2,000 verdict initially, illustrates the vital role that strategic pre-trial decisions involving stipulations and expert testimony can play throughout the entire life span of a litigation. This must have been a thoroughly frustrating decision for Spranger's attorney, who it seems did too good of a job cross-examining plaintiff and her experts, limiting her damages to such an extent, that the Court was inclined to award her a new trial. Sometimes, a defendant just can't "win." Thanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Prejudicial Question Not Grounds For A Mistrial (PA) May 23, 2019 < Back Share to: During trial, a judge will issue various decisions outside of the jury’s presence. These decisions, orders and/or instructions are meant to dictate what evidence is admissible and what actually gets heard by a jury. Frequently, however, attorneys will make statements or ask questions in the presence of a jury that contradict the trial judge’s orders. The case below demonstrates that such violations, though improper, rarely lead to a mistrial. In Livingston v Greyhound, bus passengers were injured when the bus rear-ended a tractor-trailer. The passengers of the bus sued the bus company and driver alleging that the driver fell asleep at the wheel and that the company was vicariously liable for the driver’s conduct and independently liable because its procedures to prevent fatigued driving were inadequate. Following trial, the jury found both the driver and bus company negligent, awarding punitive and compensatory damages. On appeal, the defense argued that the trial court should have granted a mistrial after a company accountant was asked by plaintiff’s counsel, in violation of the trial judge’s prior order, whether the company had set aside $81 million for crash claims following the accident. The trial court gave a curative instruction that evidence of a company’s wealth was not something the jury could consider in coming to its decision on causation and damages. The appellate division upheld the trial court’s denial of defendant’s request for a mistrial. The Superior Court acknowledged that mistrials were necessary when “irrelevant remarks …are reasonably likely to have a direct and prejudicial effect on the award of damages.” In determining whether a mistrial is warranted, the Court noted that one must look at the curative instruction given, the frequency and nature of the improper question, and whether the verdict reflects any prejudicial effect. In this action, the Superior Court concluded that the single question was asked once (in the middle of a seven week trial), a curative instruction was given, and the defendant’s wealth was an issue for the jury to hear given the punitive damages claim. Moreover, the verdict was not so excessive that prejudice could be blamed. Finally, even though plaintiff’s counsel disobeyed the trial judge’s prior order on the subject, the court found that the violation was not intentional. Thank you to Alexandra Perry for her contribution to this post.   Previous Next Contact