News Reflections On 9/11 From NYC - 20 Years Later September 10, 2021 < Back Share to: Tomorrow, Sept. 11, 2021, marks, to borrow a phrase from FDR, a day which will live in infamy in our memory. Even voicing the words “September 11” aloud entails an immediate, somber feeling. 20 years. Different media networks have been producing documentaries to commemorate the day. There will memorial ceremonies in lower Manhattan and elsewhere, and the New York Mets and Yankees game tomorrow night was specifically scheduled over a year ago as a night of remembrance and reflection. The date holds a special place for us who lived and worked in sight of the Towers that day. New York is a large and intimidating city, even when compared to other centers of commerce in the United States. There are so many different cultures, lifestyles, occupations, neighborhoods and sub-neighborhoods, each with their own sets of values, interests and pastimes. As such, few bonds of memory or camaraderie unite all New Yorkers. Because of the size and diversity of the City, many of our citizens who commute alongside one another every day share little in common experience. September 11, 2001 changed all in an instant. As of that morning, all New Yorkers either knew someone who had just been killed, or had lost a family member, or was otherwise directly affected by the terrorist act. The World Trade Center – which only existed for 28 years before September 11, 2001 – was an iconic symbol of the City’s vitality. Everyone knew someone who worked at the Trade Center, which made the event strike us too, even where we were outside the zone of immediate danger. We all have friends who worked there, some of whom were fortunate enough to make their way home that night; others did not reach home, or the embrace of their loved ones. In the following days and weeks, City workers and residents who used to go about their daily lives separately, now all mourned together. Of course, Americans were all in mourning following September 11, 2001, but New Yorkers’ grief was direct and pointed. Literally millions of us spent those days exchanging calls and texts about people we knew, hoping and praying for good news, offering support to family members and to each other. We had all lost friends and family members, and although we did not choose to, we united as a grieving community. History teaches, ironically, that tragedy can be a uniting force. While 20 years have passed, the memory still lives in its immediacy. Previous Next Contact

News Tree Harness Suit Survives Despite Plaintiff Wearing it Backwards (PA) June 21, 2018 < Back Share to: In Pennsylvania products liability law, a defendant may avoid liability by asserting that a plaintiff misused a product. However, the case of Zimmerman v. FallTech establishes just how difficult meeting that burden can be in the event a design defect is alleged. In 2008, James Zimmerman came to help a friend cut down a dead tree and he used a FallTech safety harness. He skimmed the instructions and used the product relying on his common sense and intuition. However, he put it on backwards—the harness D-ring was facing his chest instead of his back—and suspended himself from the tree. A gust of wind caused Zimmerman to change his position, causing his full weight to bear on the harness. The harness failed; he plunged thirty-five feet resulting in a collapsed lung and a leg fracture which ultimately needed amputation. FallTech argued it was entitled to summary judgment because Zimmerman misused the product. Specifically, he put the harness on backwards and tied it to a tree. This use was not foreseeable and therefore Zimmerman could establish the causation element of the claim. The trial court agreed and granted the motion. On appeal, Zimmerman argued that under Pennsylvania law, Zimmerman offered sufficient evidence to survive the motion. The Superior Court agreed with Zimmerman. When a defendant asserts misuse as a defense, it must prove that the misuse “solely caused the accident.” Here, Zimmerman’s expert offered no less than sixteen design defects. Therefore, even if Zimmerman misused the product, FallTech was not entitled to summary judgement because there is sufficient evidence that the misuse was not solely the cause of the accident. As such, the the Superior Court reversed the trial court and remanded for a trial. Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Google Images Insufficient In Attempt To Prevail On Liability (NY) August 12, 2021 < Back Share to: In Robinson v. Hess Retail Stores, LLC ,the Appellate Division, Second Department addressed the Supreme Court’s denial of plaintiff’s summary judgment motion on the issue of liability. Plaintiff alleged personal injuries when she tripped over a hole on the sidewalk abutting defendants’ premises. Plaintiff eventually moved for summary judgment contending the defendants were negligent in failing to maintain the sidewalk at issue. The court stated, “Administrative Code of the City of New York §7-210(a) "imposes a duty upon owners of certain real property to maintain the sidewalk abutting their property in a reasonably safe condition, and provides that said owners are liable for personal injury that is proximately caused by such failure". "However, Administrative Code of the City of New York §7-210 does not impose strict liability upon the property owner, and the injured party has the obligation to prove the elements of negligence to demonstrate that an owner is liable". Thus, to prevail on a motion for summary judgment, a plaintiff must demonstrate, prima facie, that the property owner created the defect or had actual or constructive notice of the defect. The court mentioned that plaintiff’s expert 1) never visited the accident site and 2) relied on goggle images which were in poor quality, and as such, the images were insufficient to establish constructive notice. Therefore, the Appellate Division held that the Supreme Court properly denied plaintiff’s motion seeking summary judgment on the issue of liability. This decision serves as a reminder to closely evaluate an experts report and see exactly they relied upon when making their opinion. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News NJ Supreme Court Reverses $71 Million Verdict Due to Tainted Jury Voir Dire July 28, 2009 < Back Share to: In Pellicer v. St. Barnabas Hospital, -- N.J. --, 2009 WL 2185492 (2009), a $71 million award was entered by the trial court for a serious brain injury to a four month old allegedly deprived of oxygen because of endotracheal tube problems following spinal surgery. The defendants appealed on the grounds that there had been cumulative errors and uneven treatment of the parties by the trial judge. The Supreme Court agreed with the defendants and specifically found that the jury pool had been tainted by a voir dire process that permitted the entire jury pool to hear numerous comments critical of the specific hospital where the infant was treated and hospitals, doctors and health care providers in general. Rather than conduct sidebars to explore biases of the jurors, the trial court permitted the potential jurors to air their thoughts about medical providers in open court. As a result the Supreme Court had “no confidence” that the jury could disspassionately consider the highly emotional facts presented. Additionally, the Supreme Court cited other errors that pervaded the trial as well including the trial court’s acquiescence to the plaintiff’s repeated use of inappropriate and irrelevant considerations that inflamed the jury and unequal treatment of the parties in various rulings. Previous Next Contact

News Injured Rock Climber Scales Past Summary Judgment Motion (NY) February 2, 2018 < Back Share to: In Lee v. Brooklyn Boulders, LLC, the plaintiff alleged she was injured at defendant’s indoor rock climbing facility when her foot landed in a gap between two safety mats. Defendant moved for summary judgment under the theory of assumption of risk; however, the lower court denied the motion and defendant appealed. The Appellate Division, Second Department considered defendant’s assumption of risk theory, namely that by engaging in a sport or recreational activity, participants consent to the commonly appreciates risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. For example, those who engage in rock climbing can expect to fall awkwardly and injure themselves. But the Second Department rejected defendant’s argument and found a question of fact. The fact that there was a gap in the mats where plaintiff fell constituted a concealed risk and moreover, there was a question of fact whether plaintiff’s injury a result of the generally accepted assumption of the risk. Defendant further argued plaintiff signed a waiver that would release the defendant from any liability. However, the Second Department cited to General Obligations Law 5-326 that exempts any agreement on liability with pools, gyms, and places of public amusement or recreation. The legislature enacted GOL 5-326 for public policy reasons as the state did not want businesses to avoid liability by having their customers sign waivers. A such, the waiver signed by the plaintiff in this action was ruled to be void and unenforceable. Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News Plaintiff on Tracks an Intervening and Superseding Cause of Accident (NY) March 3, 2017 < Back Share to: Generally, a plaintiff's comparative fault serves to reduce a defendant's liability and does not serve as a basis for seek summary judgment. But there are certain acts taken by a plaintiff that are deemed so dangerous as to eliminate any potential liability of a defendant. That was the issue litigated in Weimar v. Metropolitan Transportation Authority, et. al., where the plaintiff was serious injured when she was struck by a Metro North train. The defendants submitted evidence demonstrating that they were not negligent and that the accident was unavoidable as the plaintiff's conduct constituted an "intervening and superseding cause" which absolved the defendants of liability. Plaintiff circumvented various barriers to access an elevated track area, proceeded to walk alongside the track area, and then attempted to cross a train bridge that had limited clearance and no protective railings or fencing. In doing so, she was struck by a train and had no access to escape. Although plaintiff argued that there were questions of fact and thus summary judgment was not appropriate, the Appellate Court upheld the lower court’s decision in granting summary judgment. The Court held plaintiff’s actions were reckless and extraordinary, and constituted an intervening and superseding event and severed any causal nexus between the accident and any alleged negligence on the part of the defendants. Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Philip Pizzuto Joins WCM as Partner in New York & New Jersey Offices April 4, 2022 < Back Share to: WCM is pleased to announce that Philip Pizzuto has joined us as a partner. Phil is a trial lawyer with nearly 25 years of experience representing insureds, corporations, municipalities and individuals in the New York metro area. He has tried numerous cases to verdict in the New York, New Jersey, and Federal courts in a variety of cases including employment, general liability, toxic torts, personal injury and municipal disputes. Phil also provides advice and guidance on disputes involving toxic tort, employment and ADA claims. Phil was recently a partner with a large general practice firm in New Jersey and New York before joining Wade Clark Mulcahy LLP, and previously worked at a large New York City firm where he concentrated on toxic tort and other liability matters. Phil is licensed to practice law before the New York, New Jersey and Pennsylvania Bars. He is a graduate of Temple University School of Law. Previous Next Contact

News It's deja vu all over again. Another E-Coli Outbreak Hits the US. May 7, 2010 < Back Share to: The great baseball catcher Yogi Berra witnessed a great many heroics during his tenure with the New York Yankees. Reportedly, after watching his teammates Roger Maris and Mickey Mantle hit back-to-back home runs in a game for the umpteenth time, he is reported to have said: It's déjà vu all over again. When it comes to e-coli and US manufacturers and distributors, it certainly must feel the same way. Freshway Foods of Sidney, Ohio is recalling romaine lettuce because of e-coli contamination. The lettuce, which was sold in more than 25 US states, is suspected of causing more than 19 reported cases of sickness. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.washingtonpost.com/wp-dyn/content/article/2010/05/07/AR2010050700772.html Previous Next Contact

News In NJ MVA Case, "Discovery Rule" Inapplicable Were Plaintiff Was Aware Of Worsened Injury Prior To Expiration Of The Statute Of Limitations March 28, 2012 < Back Share to: In Fabiano v. Pagalilauan, the plaintiff filed suit for injuries sustained in a motor vehicle accident on April 16, 2008. An x-ray taken on the day of the accident revealed a large, benign bone tumor on the plaintiff’s right knee right knee. Several months later, the plaintiff underwent an MRI on October 11, 2008 that revealed a malignant transformation of the bone tumor. He eventually underwent surgery to remove the tumor, but there was no biopsy to confirm the malignancy and it was never confirmed that the alleged malignancy was casually related by the motor vehicle incident. On July 12, 2010, the plaintiff filed a suit seeking damages for the malignant transformation of the bone tumor and the resulting surgery. The defendant moved to dismiss the complaint arguing that the applicable two-year statute of limitations had expired. The defendant’s motion was granted and the plaintiff appealed arguing that the “discovery rule” applied. Specifically, the plaintiff claimed that he had two years from October 11, 2008, the date the malignancy was discovered, to file his complaint. The Appellate Court disagreed and upheld the trial court’s dismissal of the plaintiff’s complaint finding that the discovery rule did not apply in this case since the plaintiff was aware of the alleged malignant transformation before the applicable two-year statute of limitations for bodily injury stemming from a motor vehicle accident expired. The court further noted that there was no medical evidence confirming the malignancy and causally relating it to the accident. Lastly, the court noted that a cause of action for automobile negligence ordinarily accrues when the accident takes place, even if the initially sustained injuries later turn out to be more serious then originally believed. http://www.judiciary.state.nj.us/opinions/a2132-10.pdf Thanks to Heather Aquino for her contribution to this post. Previous Next Contact

News Thrid Circuit Upholds Inter-Related Wrongful Acts Provision in PL Policy (NJ) June 4, 2013 < Back Share to: Joining their colleagues in the medical profession, attorneys are increasingly becoming the targets of claims of professional malpractice. Given the mobility of individual lawyers, it can become a tricky endeavor to ensure that an attorney is covered in the event a claim is made based on alleged wrongful conduct committed at a prior firm. In Gladstone v. Westport, an attorney found himself bare for earlier acts of alleged wrongful conduct committed while working as a solo practitioner after his firm was absorbed by a larger firm in New Jersey. The new firm added the attorney to its malpractice policy by attachment of a “Prior Firm Endorsement” that amended the policy’s definition of “Who is an Insured” covering him for legal services performed at his prior firm. While operating as a solo, the attorney performed legal services from 2004 through 2006 for various individual and corporate clients who unsuccessfully sought to overturn some local zoning ordinances. After filing a collections action in 2006 against several of those former clients for non-payment of his legal fees, two responded by seeking damages for allegedly incompetent legal work. Of significance, the attorney did not file a claim with his own malpractice insurer in 2006. The collections action was eventually settled with almost all defendants, leaving the counterclaim of one defendant intact. Nevertheless, the collections action was dismissed without the knowledge or consent of the defendant with the counterclaim. Fast forward to 2009. The former client realized that his counterclaim was mysteriously dismissed so he filed a new complaint asserting malpractice in 2009 when the attorney's new firm had its professional liability coverage with Westport. In that suit, it was alleged that the zoning matter was not handled in accordance good practice. Notice was given to Westport who denied coverage on the basis that the malpractice claim was excluded by the “inter-related wrongful acts” provision. That provision explains that “Two or more CLAIMS arising out of a single WRONGFUL ACT…or series of related or continuing WRONGFUL ACTS, shall be a single claim. All such CLAIMS whenever made shall be considered first made on the date on which the earliest CLAIM was first made arising out of such WRONGFUL ACT…” The new firm filed an action for declaratory judgment challenging Westport's denial of coverage. The Third Circuit affirmed the district court's ruling that the “inter-related wrongful acts” provision in Westport's policy was not ambiguous or in conflict with the “Prior Firm Endorsement.” In short, the court found that the 2009 malpractice complaint related back to the earlier counterclaim and was “considered first made on the date on which the earliest claim was first made,” that is, in 2006. Since the claim was not “made and reported” during Westport’s policy year, it had no obligation to defend or indemnify the attorney in the newly filed malpractice case. Further, the “Prior Firm Endorsement” did not conflict with the “inter-related wrongful acts” provision. It merely added the attorney to the roster of attorneys who qualified as an insured under the Westport policy and enlarged his coverage for wrongful acts committed while at an earlier firm. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com . Previous Next Contact

News In NY Unrelated Pre-Existing Medical Condition Relevant to Plaintiff's Loss of Enjoyment Claim October 12, 2009 < Back Share to: In Amoroso v City of New York, the defendant sought to compel the plaintiff to provide authorizations for the release of medical records pertaining to a preexisting kidney, cardiac and diabetic condition. The trial court denied the motion, but the Appellate Division reversed, holding that the nature and severity of the plaintiff's prior medical condition may have an impact upon the amount of damages, if any, recoverable for a claim of loss of enjoyment of life. Accordingly, the records regarding the plaintiff’s preexisting medical condition were material and necessary to the defense. Thanks to Bill Kirrane for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07212.htm Previous Next Contact

News NY Court Of Appeals Defines "Permanent And Severe Facial Disfigurement" March 24, 2008 < Back Share to: In its recent decision in Fleming v. Graham, the Court of Appeals articulated a standard for assessing claims of "permanent and severe facial disfigurement " for the purpose of qualifying as a "grave injury" exception to the Workers' Compensation bar. The Court ruled that "an injury disfigures the face when it detrimentally alters the plaintiff's natural beauty, symmetry or appearance, or otherwise deforms. A disfigurement is severe if a reasonable person viewing the plaintiff's face in its altered state would regard the condition as abhorrently distressing, highly objectionable, shocking or extremely unsightly. In finding that a disfigurment is severe, plaintiff's injury must greatly alter the appearance of the face from its appearance before the accident." http://www.nycourts.gov/ctapps/latdec.htm Previous Next Contact