News Tragedy At CitiField Does Not Create An Unreasonable Duty To The Property Owner (NY) March 11, 2022 < Back Share to: Antonio Narainasami, decedent, and his friends attended a New York Mets baseball game at Citi Field, and like many New York Mets fans, they decided to leave the game early by the 8th inning, and headed toward the escalators. The escalators had been turned off at the end of the 7th inning and barricades had been placed to prevent patrons from walking down the escalators and redirected them to the exit ramps. Decedent and his friends decided to walk down the “stopped” escalators, and unfortunately during their descent, the Decedent fell down 50 feet and died. Plaintiff’s administrator sued the New York Mets alleging they breached a duty to maintain the safety of public patrons on its property. However, the property owner was granted summary judgment and plaintiff appealed. "Landowners generally owe a duty of care to maintain their property in a reasonably safe condition, and are liable for injuries caused by a breach of this duty." (Henry v. Hamilton Equities, Inc., 34 N.Y.3d 136). The court also stated, “where members of the public are invited onto the premises, the owner has 'a nondelegable duty to provide the public with a reasonably safe premises and a safe means of ingress and egress'" (Cox v. 118 E. 60th Owners, Inc., 189 A.D.3d 1169, 1170) The court reiterated the the scope of a landowner's duty extends to maintaining its property "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" but "there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous". A stationary escalator is not inherently dangerous. (see Adamo v. National R.R. Passenger Corp., 71 A.D.3d 557, 558; Schurr v. Port Auth. of N.Y. & N.J., 307 A.D.2d 837, 838; see also Roberts v. Old Navy, 134 A.D.3d 1088; Jaikran v. Shoppers Jamaica, LLC, 85 A.D.3d 864, 867). The Second Department affirmed the trial court’s ruling holding that defendants submitted evidence that the escalators were not defective, and plaintiff failed to offer any evidence demonstrating defendants’ failed to comply with applicable statutes and regulations concerning the escalators. Plaintiff further argued that defendants failed to take reasonable precautions against foreseeable dangers. However, the court opined that there was little else the stadium personnel could have done, other than placing security personal in front of every escalator egress, which would have been an “unreasonable burden”. Plaintiff alleged the stadium failed in their duty to provide a safe means of ingress and egress for the public, but the Second Department held that defendants demonstrated the barricades and directing patrons to the exits ramps with announcements and security personnel was sufficient to satisfy the duty. This case reiterates non-delegable duties by landowners over the public patrons that come upon their property. While a property owner who sees high-traffic events and a high volume of public patrons must ensure that there are several safe and approachable entrances/exits for the patrons, they also must be wary of unforeseen dangers and demonstrate they have done everything reasonable to mitigate that danger to the public. Moreover, the property owner must maintain security personnel, clear signs, and barricades to prevent public patrons from approaching un-safe or undesignated areas on the property. Thanks to Raymond Gonzalez for contribution to this post. Should you have any question, please feel free to contact Tom Bracken. Previous Next Contact

News Landowners' Summary Judgment Motion Defeated By Its Own Lease Agreement September 28, 2008 < Back Share to: In Susanne Greis v. Eckerd Corporation et al, an "out-of-possession" landlord learned a hard lesson in not having precise language in its lease agreement. In this case, plaintiff slipped and fell on snow on a ramp leading to Eckerd's store located within a shopping center owned by co-defendant, Mandarin Realty Company. Mandarin moved for summary judgment to dismiss Eckerd's cross-claims since Mandarin claimed to be an out-of-possession landlord that had surrendered possession and control of the subject area to Eckerd. The trial court granted Mandarin's motion. In reversing the trial court's decision, the Appellate Division found that Mandarin failed to establish as a matter of law that it was an out-of-possession landlord because the lease agreement failed to support this claim. In particular, the lease agreement failed to delineate the subject ramp where plaintiff fell as part of the demised premises possessed by Eckerd. Another provision in the lease actually required Mandarin to keep all common areas clear of snow that pursuant to the lease included passageways, sidewalks and walkways. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07087.htm Previous Next Contact

News U.S. Supreme Court Sides With Plaintiffs In Tort Preemption Dispute June 16, 2023 < Back Share to: The United States Supreme Court released a highly anticipated decision regarding the rights of workers weighed against the power of pre-emption in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174. In an 8-1 ruling, the Court held that the National Labor Relations Act (“NLRA”) did not preempt plaintiff Glacier’s tort claims alleging that the defendant Union intentionally destroyed the company’s property during a labor dispute. Glacier is a concrete delivery service which uses ready-mix trucks with rotating drums that prevent concrete from hardening during transportation. Following a labor dispute and subsequent collective bargaining agreement between Glacier and its union-member employees, the Teamsters Union called for a work stoppage the morning that Glacier was set to deliver mixed concrete. This caused the concrete to harden and damaged Glacier’s trucks. Glacier sued the Union in state court, arguing that it was liable for intentionally destroying the trucks and concrete. The Union moved to dismiss on the basis that the NLRA, legislation creating the National Labor Relations Board (“NLRB”) to protect the rights of employees to self-organize, join, or assist unions, preempted Glacier’s tort claims. The Supreme Court majority disagreed, observing that “the right to strike is not absolute” and holding that the NLRA does not protect the conduct of union members who fail to take “reasonable precautions” to protect their employer’s property from harm. The Court found that preemption was not available to the Union because the intentional harm to Glacier’s concrete was both foreseeable and serious. In her dissent, Justice Jackson opined that the majority erred because courts should not hear matters simultaneously pending before the NLRB. The Supreme Court’s decision could have a significant impact on both the rights of employees and the adjudication of preemption defenses to state tort claims. While the decision is fact-specific, it could limit the scope and applicability of federal pre-emption in different contexts. Thank you to Nicholas Ozorowski for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News An Acord Certificate Worth The Paper It's Printed On? November 22, 2010 < Back Share to: It's long been a truism that an Acord certificate is not worth the paper it's printed on. Texas may be about to change all of that -- http://www.insurancejournal.com/news/southcentral/2010/11/17/114977.htm. In the case of Brown v. Omni, the Houston Court of Appeals -- http://www.1stcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=87640 -- has held that "we reject...[the argument] that as a matter of law, issuance of an insurance certificate does not create a duty; presence of disclaimers precludes the creation of false impression; no duty to disclose should arise because there is not duty to explain policy exclusions to an insured; and the use of 'All Risk' cannot convey a false impression." The case is now on appeal to the Texas Supreme Court and if the decision stands, under certain circumstances, an Acord certificate might actually be worth the paper it's printed on. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News PTSD Damages Not Permitted In Connecticut Underinsured Motorist Claim In The Absence Of Credible Expert Testimony June 16, 2023 < Back Share to: The Supreme Court of Connecticut recently issued a decision addressing the proof necessary to establish underinsured motorist (“UIM”) coverage for certain damages claims. In Menard v. State, the Court evaluated whether plaintiffs were entitled to receive UIM benefits for post-traumatic stress disorder (PTSD) resulting from an auto accident. Plaintiffs in that case were state troopers who were injured in a motor vehicle accident involving an intoxicated driver and filed actions seeking UIM benefits from the State of Connecticut. The trial court issued judgment in favor of the plaintiffs, except as to their claims for PTSD damages. In doing so, the trial court found that the diagnosis and expert testimony of their expert was not credible and that the covered damages must be caused by “bodily injury”. Plaintiffs had argued that PTSD should be considered a “bodily injury” where plaintiffs have “physical manifestations” of PTSD. The trial court found that the plaintiffs’ PTSD claims were not due to physical injuries. The Appellate Court agreed and determined that the plaintiffs could not recover UIM benefits for PTSD. The Supreme Court agreed with this ruling but based its decision on different grounds. The Court instead found that plaintiffs’ expert witness was not credible and rejected the expert’s opinion that plaintiffs had PTSD. Thus, plaintiffs were not eligible to recover damages for PTSD, even if such coverage was afforded for such an injury under the UIM statute and the State of Connecticut’s UIM policy. The Court found that the trial court did not act arbitrarily in rejecting the expert opinion regarding PTSD and that this was a proper basis for determining UIM benefit eligibility. The Court also reversed the Appellate Court’s holding that the trial court should have reduced the award by the sums plaintiffs received to settle their Dram Shop claims. The Court recognized that the legislature abrogated the common-law rule regarding pretrial settlement payments when it adopted General Statute §52-216a. A trial court may reduce damages to account for pretrial settlement payments when the award would otherwise be excessive as a matter of law in the absence of such a reduction. The Court found that plaintiffs’ damages award was not excessive and that the Dram Shop settlement payments were not a “collateral source” to warrant a reduction. The Menard case highlights the importance of expert testimony in establishing causation and damages in UIM cases in Connecticut. The Court found that plaintiffs there failed to establish certain injuries even though they were potentially covered under the policy and applicable statute. Defendants should be prepared to challenge such claims where the proof is insufficient. Thank you to Arianna Arca for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News PA Court Finds UIM Benefits Not Required Under PA Umbrella Policies July 23, 2020 < Back Share to: In Jones v Amica Mutual Insurance, the Court recently considered whether an insurer was required to pay UIM benefits under a Personal Umbrella Policy. In the underlying action, Jones filed suit for injuries she sustained in a motor vehicle accident. The adverse driver, Sean Murtha, was responsible for accident. Plaintiff received the $100,000 policy limit from Murtha's insurer Allstate. However, Jones claimed that her injuries exceeded this amount, and she subsequently filed an underinsured motorist claim with her own insurance carrier, Amica. At the time of the accident, Jones’ Umbrella Policy specifically excluded underinsured motorist coverage. Jones conceded that the Umbrella Policy excluded UIM benefits, but she argued that under the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”), Amica was required to offer her the opportunity to include UIM benefits in her Umbrella Policy, and because Amica failed to do so, the Umbrella Policy must be reformed to include UIM benefits up to the $1,000,000 policy limit. Under the MVFRL, every Pennsylvania motor vehicle liability insurance policy must provide UIM coverage unless the coverage has been explicitly waived by the named insured. See 75 Pa. Stat. and Cons. Stat. Ann. §1731. Amica argued that, because the Umbrella Policy is an excess policy and not a motor vehicle liability policy, the MVFRL does not apply, and the Umbrella Policy cannot be reformed to include UIM coverage. The Court ultimately granted Amica’s motion to dismiss Jones’s claim for UIM benefits under the Umbrella Policy, finding that the MVFRL did not apply to the Umbrella Policy at issue. This case demonstrates the importance of verifying whether an Umbrella Policy provides UM/UIM coverage. Thanks to Emily Finnegan for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Caveat Employer—Coverage Triggered for Failure to Supervise July 11, 2018 < Back Share to:   Although intentional acts are typically excluded from coverage under a commercial general or professional liability policy, an employer is still entitled to coverage in a claim for failure to supervise according to the Second Circuit Court of Appeals in Pacific Employers Insurance Co. v. Saint Frances Care Inc. For thirty years, from 1963 until 1993 when he retired in a cloud of suspicion, Dr. George Reardon sexually abused children in his care as an endocrinologist at St. Francis Hospital. The details and scale of his horrific actions came to light when, following his death in 1998, his home was purchased and the new home owners found a secret room housing pornographic materials and logs of his actions. Approximately 160 individuals sued the hospital for, among other things, corporate negligence, breach of fiduciary or confidential relationship, and breach of the special duty of care owed to children. The excess insurer of the hospital argued sexual assault falls outside the purview of coverage, and also raised concurrency and priority issues. The District of Connecticut rejected the excess insurer’s arguments, and the Second Circuit affirmed in a summary order. With respect to coverage for the sexual assault, the Second Circuit stated coverage is triggered under either the commercial general or professional liability at the primary level of coverage for the claims of failure to supervise. In reviewing claims, it can be difficult to separate the character of an action from the specific nature of a claim. In New York, the duty to defend arises when at least one claim fails within the scope of coverage. Here, it is incumbent to assess the nature of the claims against the actual insured, the hospital, to determine coverage. This matter sounds in negligent supervision, and negligence is typically covered. An important exception is when the character of an intentional act cannot be separated from the alleged negligence. We see this in cases where an assailant may not have intended injury, so the victim sues under an intentional tort and negligence (e.g., reckless disregard). As both causes of action pertain to the intentional act of an assault, coverage would be excluded even for the negligence action. By contrast, here, the intentional act is separate and apart from the hospital’s alleged negligence in failing to supervise the doctor. Thus, when analyzing claims arising from an intentional act, it is important to focus on two things: the character of the act itself, and whether the claim itself is removed from the act. Thanks to Christopher Soverow for his contribution to this post. Previous Next Contact

News Three Families Can Count as Two for Labor Law’s Homeowner Exemption (NY) June 3, 2016 < Back Share to: Under New York Labor Law §§2401(1) and 241(6), a homeowner can be held vicariously liable for the torts of their contractors. However, the statute provides an exemption for the owners of one or two family homes who do not direct or control the work. But what counts as a family? The First Department recently shed some light that on issue in Diaz v Bocheciamp. In Diaz, the plaintiff’s decedent died after falling to the ground while working on the roof of the defendant’s house. The estate sued under New York Labor Law §§2401(1) and 241(6). At the time of the accident, the defendant homeowner shared the house with an adult child, two grandchildren, and a family friend who lived in the basement. The trial court had entered judgment against the homeowner, who appealed to the First Department. The First Department reversed, and held that the homeowner exemption applied. According to the court, the applicability of the exemption hinges on a “site and purpose” test, which is based on the homeowner’s intentions at the time of the injury. Because this defendant lived with relatives and collected no rent, the court held as a matter of law that this home was “at most, a two-family dwelling” even though it housed “three families, two of which are related.” Diaz is welcome news to homeowners who do not oversee their contractors’ work, but also to their insurers as well. Thanks to Michael Gauvin for his contribution. Please email Brian Gibbons with any questions. Previous Next Contact

News NJ "Substantial Factor" Sufficient Medical Causation Proof in Mesothelioma Suit April 7, 2010 < Back Share to: Mark Buttitta developed mesothelioma at age 49 years old and died a little more than one year later. In litigation filed on his behalf and pursued by his estate following his death, he alleged that he had been exposed to asbestos at a General Motors distribution warehouse where he worked as a "picker" filling orders for parts that included asbestos containing products. His direct exposure was limited to three summers and winter breaks during 1971-1973 when he was otherwise enrolled at Colgate University. He also claimed indirect exposure to asbestos fibers that his father and brother carried home from their work at GM. While a number of defendants in the case settled, two defendants proceeded to trial including Borg-Warner, a clutch supplier, and Asbestos Corp. Ltd, a Quebec supplier of raw asbestos to GM. The jury returned a verdict in excess of $30 Million dollars. At issue in the appeal was the legal standard of causation applied by the trial court. Generally a plaintiff in a product liability action must prove that the product was defective when it left the manufacturer's control and that defect caused injury to a reasonably foreseeable user. In a toxic tort product liability action, the plaintiff must also prove medical causation, e.g. exposure to the defendant's asbestos product caused an illness. For asbestosis and lung cancer cases, medical causation is proven on the basis of frequency, regularity, and proximity of exposure. However, the court noted testimony that mesothelioma can develop from the cumulative effects of only minimal or infrequent exposure thereby challenging the rigid application of the medical causation standard generally applied. Hence, the appellate court approved of the trial judge's application of a "substantial factor" test that required only that the plaintiff provide direct or circumstantial evidence from which a reasonable jury could conclude that at some point in his work history, Buttitta was exposed and in close proximity to the defendant's product frequently and on a regular basis. Although the defendants also challenged the trial court's denial of a remittitur, the appellate division found that the verdict was not so disproportionate that it shocked the judicial conscience. If you have any questions about this post, please email Denise Ricci at dricci@wcmlaw.com . See Buttitta v. Allied Signal at http://www.judiciary.state.nj.us/opinions/a5263-07a5268-07.pdf Previous Next Contact

News Heir Files US Suit Against the Czech Republic to Recover Nazi Art May 31, 2012 < Back Share to: Michal Klepetar is the grand nephew of Richard Popper, a Jewish art collector who had a number of significant paintings seized by the Nazis. Many of the works -- valued at over $50 million -- are currently hanging in the Prague National Gallery, and it does not appear that Popper's ownership of the works are being questioned. But Czech restitution law only allows direct relatives, such as wives and children, to claim such stolen art, and his pleadings to government officials and politicians have fallen on deaf ears. As such, Klepetar is now trying his luck with the US courts, which in some cases have allowed Nazi art suits to proceed against foreign governments. Also of note is the fact that he is being represented by Edward Fagan, who has purchased an interest in the art works at issue and created an organization called Victims of Holocaust Art Theft for the specific purposes of the lawsuit. Fagan is well known for obtaining a billion dollar settlement from Swiss banks for withholding accounts that belonged to Jewish families that perished under the Nazis. Fagan later was accused of neglect, fraud, misappropriation and other ethics charges and apparently has been disbarred by New Jersey and New York. For more information, please write to Mike Bono at mbono@wcmlaw.com   Previous Next Contact

News A Defendant Denied Summary Judgment for Hitting A Golf Ball Too Well (NY) June 6, 2019 < Back Share to: In New York, it is well-settled an individual who chooses to participate in a sport consents to certain risks which are inherent in the nature of the sport, a principle generally referred to as the Assumption of Risk doctrine. In golf, specifically, courts have explained that mishit golf balls flying in unintended directions fall within the scope of this doctrine, as such errors are a part of the game. However, in Krych v Bredenberg, the Fourth Department of the Appellate Division unanimously affirmed the denial of the defendant’s summary judgment motion in a case where he struck plaintiff with a golf ball on a golf course. Bredenberg claimed his playing partners had teed off before him and plaintiff’s group was playing on the fairway 100 or 150 yards beyond where his partners’ drives had landed, and that his drive happened to be a particularly prodigious one and struck plaintiff. The Court found a question of fact and affirmed denial of summary judgment, as plaintiff’s testimony conflicted with defendant’s as to the distance of the shot at issue. Moreover, the Court observed Mr. Bredenberg was a very skilled golfer, the ball was struck straight and true, and plaintiff was visible to him, potentially within his range. The deposition testimony was key here, and while Assumption of Risk is a powerful defense tool, one must make sure discovery supports it if you are to plan for a successful summary judgment motion. And, ironically, Bredenberg would likely have been better off if he were a worse golfer and had simply shanked his drive. Thank you to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Terms Used in the Complaint Determine Defense Coverage to the Insured June 12, 2017 < Back Share to: In Hillcrest Coatings Inc v Colony Ins Co, the Appellative Division recently affirmed the trial court’s order requiring Colony Insurance provide a defense to its insured in an underlying environmental tort action despite the CGL policy’s hazardous materials exclusion. The allegations in the underlying environmental action stated that Hillcrest Coatings operated their glass and recycling facility in a negligent manner, causing hazardous materials to contaminate the surrounding areas. The underlying complaint also alleged that Hillcrest’s negligent actions “caused a malodorous condition to be created in the surrounding neighborhood.” In disclaiming coverage to Hillcrest, Colony relied upon an exclusion that excepts from coverage all bodily injury and property damage resulting from “actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘hazardous materials’ at any time.” ‘Hazardous materials’ was defined by the policy as “pollutants” including any “solid, liquid, gaseous or thermal irritant or contaminant…” The court found that ‘Malodorous’ is not necessarily ‘Hazardous,’ and Colony owed a duty to defend its insured. The Hillcrest decision serves to underscore the breadth courts attribute to the insurer’s duty to defend. The Court stated that Colony had failed to meet the high burden of establishing that the hazardous materials exclusion precluded coverage in this instance because, despite the fact that the underlying complaint specifically alleged that the “malodorous condition” resulted from hazardous materials, “foul odors are not always caused by the discharge of hazardous materials.” Thus, because “malodorous” may not be hazardous, Colony was ordered to provide a defense and to reimburse its insured for costs expended. This decision is a reminder that in terms of coverage, courts can find even an unlikely possibility of coverage to be “reasonable” when assessing the insurer’s duty to defend. Thanks to Vivian Turetsky for her contribution to this post. Previous Next Contact