News Janet's Law Requires AEDs At School (NJ) September 26, 2012 < Back Share to: New Jersey Governor Chris Christie recently signed “Janet ’s Law,” which requires New Jersey public and non-public schools to have an automated external defibrillator (AED), to train school officials and coaches on the use of AEDs, and to establish emergency action plans for responding to sudden cardiac events. The law also requires that the mandated AEDs be maintained in accordance with the previously passed law on AED acquisition and maintenance (section 3 of P.L. 1999, C.34 (C.2A:62A-25)). Janet’s Law will take effect on September 1, 2014 and effects schools that include grades kindergarten through 12. We believe this law sets a new standard for schools, and will lead to additional claims against schools and school districts that are not in compliance with the law. We note that previous versions of the law were more detailed and expansive, and called for AEDs at youth recreational facilities and camps as well as the education of students on various health topics. The new legislation makes clear that the standard for AEDs is now different for youth recreational facilities and camps as opposed to public and non-public schools. Janet’s Law imposes an additional burden on elementary, middle and high schools. However, AEDs are already required in many large places of public accommodation, such as airports and healh clubs, and have been proven to be effective tool in saving lives during sudden cardiac events. Prudent underwriters should inquire in the application process and pre-risk surveys about the presence of AEDs at schools located in New Jersey that they insure. Thanks to Alison Weintraub for her contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Follow The Rules! Plaintiff’s Claims Dismissed For Failure To Comply With Court Orders (PA) December 15, 2021 < Back Share to: In Vilgosas, et al. v. Janssen Research & Development LLC, et al., the Pennsylvania Superior Court affirmed the trial court’s dismissal of the plaintiff’s claims after he failed to comply with the court discovery order. The court reasoned that the plaintiff’s failure to comply with the discovery order impeded the defendants’ ability to defend the case. From 2013 to 2014, plaintiff Alfred Vilgosas (“Vilgosas”) suffered complications from the drug prescribed medication Xarelto including internal bleeding. Vilgosas was not the only Xarelto user with complications and by 2019, nearly 2,000 civil claims had been filed in Philadelphia County against Xarelto manufacturer for similar complications. In March 2019, the plaintiffs in all Xarelto claims negotiated a $750 million settlement to resolve all outstanding Xarelto claims. As part of the settlement, the court issued a case management order with several obligations for the plaintiffs. Vilgosas failed to comply with the discovery order. Janssen filed a notice of deficiencies with the court. Vilgosas then continued to defy the court order when he failed to produce required documents to Janssen at the show cause hearing. The trial court dismissed Vilgosas’ claims. Vilgosas then appealed to the Pennsylvania Superior Court. In affirming, Superior Court found Vilgosas’ failure to produce records impeded Janssen’s ability to defend itself. Specifically, Vilgosas failed to produce hospital records that would have had information on his underlying conditions and treatment. This information was necessary for the defense. Further, the court found that Vilgosas’s noncompliance was willful and in bad faith. Thanks to John Lang for his assistance in this article. Should you have any questions, please feel free to contact Thomas Bracken. Previous Next Contact

News Dear John Doe (PA) February 22, 2019 < Back Share to: Don’t forget about John Doe when appealing trial court orders holds Pennsylvania Superior Court. In William Massaro v. Tincher Contracting, LLC, Kenneth E. Tincher II, & John Does 1-10, William Massaro (“Massaro”) sued Kenneth Tincher and his contracting company, Tincher Contracting, LLC (together, “Tincher”) for breach of contract, breach of implied warranties, and unfair trade practices relative to the build of Massaro’s home. Tincher successfully moved for summary judgment on all counts at the close of discovery, and an order was entered dismissing Tincher, but not the John Doe defendants, from the case. Massaro appealed the trial court’s order. However, the Pennsylvania Superior Court quashed the appeal. In reaching its conclusion, the Court held that Pennsylvania’s appellate courts have jurisdiction over only final orders. It is established in the Commonwealth that final orders are those judgments that dispose of all claims and all parties. If any claim remains unresolved even after a judgment, then the order is not final, and it cannot be appealed. Here, the grant of summary judgment, the Court concluded, did not resolve the case as between Massaro and the John Doe defendants and, thus, was not final. Thus, while John Doe defendants are easy to overlook, this case shows that they should not be whenever an attorney is assessing appellate court jurisdiction. Thanks to Robert Turchick for his contribution to this post. Please email Colleen Hayes with any questions. Previous Next Contact

News Courts are Reluctant to Dismiss a Case at the Pleadings Stage--Especially on “Negligent Failure to Market” Grounds (PA) March 6, 2020 < Back Share to: On February 24, 2020, Judge Kim R. Gibson of the United States District Court for the Western District of Pennsylvania denied a defendant truck leasing company’s motion to dismiss the plaintiff’s complaint because she determined that the plaintiff’s allegations gave sufficient notice of strict liability claims, and were not negligent failure to market claims, which are not recognized by Pennsylvania Law. In Shimmel v. Navistar International Corp., plaintiff John Paul Shimmel and his mother and duly appointed guardian (collectively, the “Shimmels”), brought a personal injury action against Navistar International Corporation, Rush Truck Leasing and Rush Truck Centers of Virginia, Inc. (collectively, “Rush”), alleging negligence and strict liability. The case stems from a motor vehicle accident. A truck leased by Rush, and driven by co-defendant Wei Jang (“Jang”), was traveling on State Route 322 in Pennsylvania when Jang could not stop and swerved into the adjacent lane. John Paul Shimmel was on his motorcycle on the same Route 322 when Jang’s truck swerved into his lane. He “ditched” the motorcycle to avoid the collision, and as a result, he slid into a nearby guardrail and suffered severe injuries. The Shimmels claimed that the truck’s lack of warning equipment or automatic braking equipment evidenced a defective design. The Shimmels also claimed that Rush was strictly liable for failing to market the truck with a forward collision warning system. Rush moved to dismiss the Shimmels' complaint, arguing that the defective design claims were actually negligent failure to market claims, which Pennsylvania law does not recognize except for pharmaceuticals. According to Rush, it has no duty to educate customers with respect to the product’s safety features, or to market their products with certain safety features. The court, however, disagreed. The court reasoned that the Shimmels sufficiently plausibly pled a strict liability defective product claim against Rush because the complaint adequately pled that Rush was in the business of leasing vehicles like the truck, and a lessor is strictly liable for defects in products it leases. The Shimmels pled facts sufficient to give notice that the truck was defective. Although part of the Shimmels claim alluded to negligent failure to market, the claim alleged facts sufficient to plead strict liability. The court’s denial of Rush’s motion in Shimmel reaffirms that courts are reluctant to dismiss a case at the pleadings stage. If a plaintiff plausibly pleads the elements of a cause of action, the complaint will not be dismissed out of the box. Thanks to John Lang for his contribution to this post. Please email Mike Gauvin with any questions. Previous Next Contact

News Health Insurer's Subrogation Right Survives in New York March 15, 2009 < Back Share to: As medical costs continue to rise, the health insurer's role in personal injury actions is certain to increase. In Fasso v. Doerr, the health insurer intervened in a medical malpractice action to recoup the $780,000 it had paid for plaintiff's medical bills. The Court of Appeals held that a settlement below plaintiff's claimed damages did not extinguish the health care carrier's subrogation claim because there was still available insurance coverage. Further, an agreement between the tortfeasor and injured party cannot extinguish the health carrier's claim without it consent. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01320.htm Previous Next Contact

News Sidewalk Shenanigans in Buffalo (NY) January 16, 2020 < Back Share to: In Beagle v. City of Buffalo, a plaintiff had a trip and fall on a sidewalk where the City of Buffalo had performed a cold patch (asphalt patch to fill in cracks in concrete) during winter on a gap between two sidewalk slabs. The two slabs were elevated by roots of a nearby tree (insert J.R.R. Tolkien reference here) owned by the City of Buffalo. Before the accident occurred, the City performed cold patch repair covering the open section caused by the root. However, the sidewalk slabs in controversy were still elevated, and the plaintiff tripped on them. It is settled law in New York that a municipality may require prior written notice of any defect on a sidewalk a condition precedent to any tort actions against it. The Defendant City of Buffalo moved for summary judgment contending it had no prior notice of the dangerous defect pursuant to Buffalo City Charter §21-2. However, the New York Court of Appeals has recognized two exceptions to the prior notice rule. The first exception is where a special use of the sidewalk confers a special benefit upon the defendant, and the second exception is where the city has created the defect or hazard through an affirmative act of negligence that immediately results in the existence of a dangerous or defective condition, and not a condition that develops over time. Here, although the plaintiff did not plead the prior written notice in her Amended Complaint, the Court felt that the City of Buffalo failed to prove as a matter of law that the cold patch repair performed on the sidewalk created a dangerous condition that developed over time. The circumstances surrounding the accident in Beagle are reminiscent of hundreds of sidewalk claims against premises owners, tenant/leasor and municipalities each year. Quite often, municipalities move for summary judgment and win based on the argument that they had no prior written notice pursuant to local statutes. Afterwards, the premises owner and tenant/leasor are left in the case because they may have had constructive notice of the dangerous defect. This case provides a clear legal analysis that can be used to show that the local municipality cannot be dismissed from a case simply because they had no prior written notice. Rather, in circumstances such as these, the local municipality must show they did not create the hazard or that the claimant was not immediately injured by the hazard they created. Thanks to Raymond Gonzalez for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Are You Exaggerating? March 22, 2019 < Back Share to: The New Jersey Supreme Court recently reversed the categorical ban on the use of certain medical terminology during trial. Specifically, in Rodriguez v. Wal-Mart Stores, Inc., the Court grappled with the use of the terms somatization and symptom magnification during trial. The case arose from an incident at Wal-Mart that allegedly caused plaintiff to suffer a wrist injury. She sought treatment and eventually had surgery, but she still complained of pain in her wrist. At trial, defense counsel produced two expert witnesses who opined that plaintiff was somaticizing in response to plaintiff’s experts who opined that plaintiff was suffering from Chronic Regional Pain Syndrome. Somatization is “the production of recurrent and multiple medical symptoms with no discernible organic cause”. One of the defendant’s experts also opined that plaintiff was magnifying her symptoms. Symptom magnification is the reporting of a symptom that seems to be excessive compared to what should be reported in a given situation for most individuals. The trial judge allowed the testimony and the jury returned a defense verdict. Plaintiff appealed prompting the Appellate Division to impose a categorical ban on the terms somatization and symptom magnification since those terms, according to the Appellate Division, implied that a plaintiff was a malingerer, someone who exaggerates or outright feigns an illness or condition. The Supreme Court of New Jersey reversed. It concluded somatization and symptom magnification are medical terms that may be relevant in a specific case. The terms are not unduly prejudicial since they are not defined as involving dishonesty for financial gain. The Supreme Court tasked the courts with determining whether use of the terms are relevant and not unduly prejudicial while tasking the jury with determining credibility issues. Accordingly, this case illustrates parties can continue to use these terms, so long as they establish their relevance, as well as no prejudice will be suffered. Thanks to Michael Noblett for his contribution to this post. Please email Colleen Hayes with any questions at chayes@wcmlaw.com Previous Next Contact

News Saw You Slipping In The Lobby (It Wasn’t Me) (NY) February 18, 2021 < Back Share to: Kwan v. Confucius Plaza Tenants, et al, No. 154794/2015, 2021 WL 419041 (NY Cty. Sup. Ct. Feb. 5, 2021) is a personal injury case, wherein Plaintiff alleged damages after a slip-and-fall in the lobby of her residential premises, which was owned and managed by defendants. Kwan was decided on summary judgment in favor of defendants, who were able to prove: “It wasn’t me.” How? Surveillance footage captured the entire incident. The accident occurred on a rainy day after Plaintiff and her daughter entered safely through the lobby’s vestibule and towards the elevators. Plaintiff and her daughter were carrying umbrellas, and the daughter was rolling a suitcase. The daughter entered the elevator safely, pulling her luggage along with her. As Plaintiff followed, she slipped on the exact spot where the suitcase had just traversed. The record contained conflicting testimonial evidence about the existence of warning signs, mats in the vicinity, and whether defendants had notice about the wet conditions that caused Plaintiff’s slip-and-fall. The Kwan Court did not buy Plaintiff’s account of the events. Under New York law, to establish liability in a slip-and-fall case, a “plaintiff must prove that defendant either created or had notice of the condition.” Here, Plaintiff could not create triable issues of fact to prevent dismissal on summary judgment. Defendants established, as a matter of law, they did not create the wet-floor condition. Specifically, the video footage, from the lobby, supported defendants’ theory – that Plaintiff and her daughter tracked water into the lobby vis-à-vis carrying wet umbrellas, walking with wet shoes, and pulling a wet suitcase. Plaintiff failed to provide countervailing evidence to these points. And defendants do not have an “obligation to provide a constant remedy” if water is “tracked into the building by individuals immediately preceding plaintiff.” Plaintiff also failed to create triable issues of fact that defendants had either actual or constructive notice the floor was wet. In terms of actual notice – defendants were never notified the floor was wet (or otherwise observed the floor being wet). In terms of constructive notice – “a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit defendants’ employees to discover and remedy it.” Here, Plaintiff failed to provide any evidence establishing how long the floor was wet before the accident. Additionally, the record was remiss of evidence that anyone else saw the floor being wet prior to the accident. The takeaway from Kwan is not novel: owners, managers, and operators of commercial and residential property should consider investing in surveillance cameras for the common areas of their respective premises. Doing so can save time and money, as it may permit prospective defendants to prevail on summary judgment by relying on the “it wasn’t me” defense. Of course, this type of defense can only be successful if prospective defendants comply with their legal duties under premises liability law. Otherwise, it could be defendants caught red-handed, letting water stay on the floor. Thanks to John Amato for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Workers' Compensation Defense Applies to Alter Egos October 13, 2008 < Back Share to: The defense afforded to employers by the exclusivity provision of the Workers' Compensation Law may also extend to suits brought against an entity that is found to be the alter ego of the corporation that employs the plaintiff. In Cappella v. Suresky at Hatfield Lane, LLC, the plaintiff was employed by R.I. Suresky & Son, Inc., a car dealership. The plaintiff claimed that he was injured when he fell in the dealership lot. Since he could not bring suit against his employer, the plaintiff sued Suresky at Hatfield Lane, the owner of the lot. Suresky at Hatfield Lane argued that it was an alter ego of the plaintiff's employer and submitted proof that the plaintiff's employer exercised managerial and financial control over it. The court ruled that this proof sufficiently established a prima facie defense under the Workers' Compensation Law. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07603.htm Previous Next Contact

News Court Doesn't Like Facebook Discovery Demands (NY) October 19, 2012 < Back Share to: With the increase in popularity of social media websites in recent years, attorneys are increasingly seeking the disclosure of parties’ social media accounts. Acknowledging this trend, the New York State Appellate Division recently held that any such disclosure requests must be narrowly tailored, seeking only social media account information that relates to the subject of the litigation. In Kregg v. Maldonado, the plaintiff commenced an action on behalf of her injured son, Christopher, against Suzuki Motor Corporation of Japan and American Suzuki Motor Corporation. Plaintiff alleged that Christopher was injured while riding a motorcycle manufactured and distributed by the Suzuki defendants. Following initial disclosure, the Suzuki defendants learned that Christopher’s family created several social media accounts, including accounts on Facebook and MySpace. Christopher’s family members posted on these social media accounts on his behalf. The Suzuki defendants moved to compel the disclosure of all social media account records maintained by or on Christopher’s behalf. Plaintiff objected to the disclosure, arguing that the motion was a “fishing expedition.” The trial court granted the Suzuki defendants’ motion to compel. But the Appellate Division, Fourth Department found that the discovery demand for the social media records was made without “a factual predicate with respect to the relevancy of the evidence.” The court held that the proper means for a party “to obtain disclosure of any relevant information contained in the social media accounts is a narrowly-tailored discovery request seeking only that social media-based information that relates to the claimed injuries arising from the accident.” Accordingly, the court reversed the trial court’s decision, and denied the Suzuki defendants’ motion to compel, but granted the defendants leave to serve a more narrowly tailored disclosure request. Thanks to Steve Kaye for his contribution to this post. If you would like more information, please write to mbono@wcmlaw.com     Previous Next Contact

News Premises Liability Mode-Of-Operation Theory A Matter of Probability (NJ) October 30, 2013 < Back Share to: The mode-of-operation theory of liability for a premises liability action against a business is a tempting strategy. It absolves an injured plaintiff of the burden of proving that the business owner had notice of a dangerous condition in time to address it. As tempting as it is, it has its limitations. For one, the plaintiff must show that the alleged condition was related to the manner in which the business is conducted. Earlier this year, in February, we reported that the New Jersey Appellate Division issued an unreported decision, Cashour v. Dover Parkade, LLC, that limited application of the mode-of-operation theory where the plaintiff was unable to sustain a link between the object she slipped on and the defendant store's business operations. In that case, the plaintiff fell on a plastic bag that was in front of a store. However, she could not link the bag to the store's operations. Now the Appellate Division has issued a reported decision addressing this theory once again. In Arroyo v. Durling Realty, LLC, the plaintiff alleged that she slipped on a discarded telephone calling card left on the sidewalk in front of a convenience store. The plaintiff linked the cards to the store, noting that the phone cards were displayed on racks near the store's cash register next to the exit doors. She argued that due to the proximity of the cards to the door, the business should have foreseen that someone might buy a card, use it, and then immediately discard it on the sidewalk. With no real proof as to actual or constructive notice, the plaintiff's only chance was through this mode of operation argument. However, she had to convince the judges that "as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business." The judges were not persuaded. Since the patron would have selected the card, paid for it at the cashier, and left the store, the nexus between a self-service operation and the card on the sidewalk was too attenuated. Summary judgment was affirmed. This reported decision should help to clarify that notice is still a required proof burden for a claim against a retailer with limited exceptions. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News This and That by Dennis M. Wade December 22, 2017 < Back Share to: As a student of appellate advocacy, I love to argue, attend, watch, and listen to oral arguments because I am convinced they do in fact shape the outcome of the ultimate decision. The Supreme Court heard oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission on December 5, 2017. The argument lasted for more than an hour and consumed 108 pages of transcribed cut and thrust. In my post of November 9, 2017, I predicted that SCOTUS would somehow “ice over” the cake as art issue and affirm the ruling of the Colorado Civil Rights Commission which ruled that baker Jake Phillips’s refusal on religious grounds to create a specialty cake for a same sex couples’s forthcoming marriage violated Colorado’s anti-discrimination law. The argument, with sharp questions coming from both liberal and conservative justices, I believe, proves the accuracy of my prediction. Phillips’s lawyer was asked to draw fine distinctions between, for example, a baker, a florist, a make-up artist, and a chef. But I thought the most telling question came from Justice Alito, followed by Justice Breyer. And it was a question central to the warning I give to all of my colleagues who are preparing for oral argument: Be Wary Of The Concessions You Are Asked To Make. Because Justice Alito’s question with its implicit request for a concession is so telling, I quote it in full below. “Justice Alito: What would you say about an architectural design; is that entitled to - - not entitled to First Amendment protection because one might say that the primary purpose of the design of a building is to create a place where people can live or work? Ms. Waggoner: Precisely. In the context of an architect, generally that would not be protected because buildings are functionable, not communicative. Justice Alito: You mean an architectural design is not protected? Ms. Waggoner: No. Architect - - generally speaking, architectural would not be protected. Justice Breyer: So in other words, Mies [van der Rohe, a famous modernist architect] or Michelangelo or someone is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now, that - - that really does baffle me, I have to say… “[bracketed reference, mine].” With one question - - and with the concession made, it seems to me that Phillips’s lawyer revealed, albeit unintentionally, that his client’s refusal to bake a specialty cake for a same sex couple had to do with the identity of the same sex couple - - and not the artistry or the message in the cake he was asked to create. In other words, having conceded that an architect under Colorado’s law could not refuse to create a design for a same sex couple, the credibility of the argument collapsed like a cake for want of the proper amount of yeast, especially when the Court baked Michelangelo and Mies van der Rohe into the cleverly designed query. In sum, having read all of the briefs and having studied the argument, I do not think SCOTUS is going to use this controversy to decide what constitutes a protected message under the First Amendment or indeed whether a cake may qualify as art. And that’s it for this This and That - - and for 2017. Best wishes for a Joyous Holiday Season and a Happy & Healthy New Year. Previous Next Contact