News Finding Candy Is Not Always A Good Thing (PA) September 5, 2019 < Back Share to: In Dupell v Walmart Stores East LP, the Eastern District of Pennsylvania granted Summary Judgment in favor of defendant Walmart, finding no evidence that there were any harmful conditions that caused Tracie Dupell (“Plaintiff”) to fall. In brief, the Plaintiff was shopping at Walmart when she fell and injured her leg. The Plaintiff contends that she slipped and fell on loose M&Ms. The Plaintiff’s complaint alleges Walmart was negligent because it knew or should have known about the harmful condition and failed to maintain its store in a safe manner. The Plaintiff’s discovery responses indicate that the Plaintiff had no firsthand knowledge of what she slipped on and did not see the M&Ms herself. Rather, the Plaintiff asserts that her husband saw the M&Ms after she fell. The video footage does not show any loose candy on the floor and there is no mention of the candy in the incident reports. In Walmart’s Motion for Summary Judgment, Walmart contended there was insufficient evidence to establish negligence. Under Pennsylvania law, a possessor of land may be found liable only if he: (a) knew or by exercise of due care should have known about a condition on the land that involves an unreasonable risk of harm, (b) expected that the invitee will not discover the dangerous condition, and (c) failed to exercise reasonable care to protect themselves from the danger. Constructive knowledge of a dangerous condition can be established by demonstrating that the condition existed for such a length of time that in the exercise of reasonable care the owner should have known of it. Here, the Court determined that the Plaintiff failed to offer enough evidence to support her assertion that Walmart knew or should have known of the M&Ms on the floor. The Walmart security footage, incident reports, and discovery responses did not support the existence of the M&Ms. The Court found the Plaintiff’s husband’s statement regarding the M&M insufficient as he was never deposed nor was a sworn affidavit produced. Further, the Plaintiff’s husband arrived on the scene after the Plaintiff had fallen and did not witness the Plaintiff fall on the loose candy. Therefore, the Court held that Summary Judgment in favor of Walmart was appropriate as there was insufficient evidence demonstrating the existence of the loose candy and even if it existed, there was no evidence of how it got there or how long it had been there. This case reaffirms the notion that in premises liability actions, a court may grant a motion to dismiss if the Plaintiff has failed to support his or her contention that a harmful condition existed with sufficient evidence. Thank you to Rachel Thompson for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Court Refuses to Issue Advisory Opinion Regarding Statute of Repose (PA) February 8, 2018 < Back Share to: In Magnarelli v Vaughan and Sautter Builders, No. 1902 EDA 2017, Superior Court of Pennsylvania, the Superior Court denied appellants’ appeal and affirmed the lower court’s order dismissing the complaint because the action was barred by the Statute of Repose. Appellants, who were the plaintiffs in the underlying action, were homeowners who brought a breach of contract action against a home builder and general contractor, for construction defects in their home. The work on the plaintiffs’ home was completed in July of 2004, however they did not commence their underlying cause of action until September of 2016. In Pennsylvania, the Statute of Repose, 42 Pa.C.S. § 5536, requires construction defect actions to be brought within twelve (12) years after the completion of construction. In addition to the plaintiffs’ dilatory commencement of the underlying breach of contract action, they also named the incorrect defendants in the complaint. Accordingly, defendants in the underlying action filed a motion for judgment on the pleadings, and the trial court dismissed the plaintiffs’ complaint with prejudice citing the plaintiffs’ mis-identification of the proper defendants as well as the fact that the cause of action was time-barred by the Statute of Repose. Following the trial court’s order dismissing the complaint, the plaintiffs (now appellants) argued that, after learning that they named the incorrect defendants in their initial action, the plaintiffs filed a separate action naming the correct defendants responsible for the work on their home. However, because the trial court did not specify its precise basis for dismissing their original compliant, appellants sought the Superior Court’s ruling on the Statute of Repose issue because they wanted guidance regarding whether their second action against the proper defendants would be similarly time-barred. The Superior Court explained that appellants were essentially requesting an advisory opinion from the Superior Court regarding the Statute of Repose issue. While affirming the trial court’s uncontested decision to dismiss the action involving the improperly-named defendants, the Superior Court declined to address the trial court’s alternative basis for dismissing the original complaint for violation of the Statute of Repose. The Superior Court went on to explain that it is impermissible for courts to render “purely advisory opinions,” and therefore simply affirmed the trial court’s ruling granting the defendants’ motion for judgment on the pleadings in the underlying action. The status of the appellant's newly filed claim remains to be seen. Thank you to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Pipe Rising from the Grave Causes Trip & Fall (PA) June 29, 2016 < Back Share to: A cemetery director in Newtown, PA was awarded a $400,000 verdict after he claimed he tripped and fell over an exposed pipe in the cemetery he was working in. Darrin White alleged that on July 23, 2012 he tripped and fell over a pipe that housed electric cables which led to a construction trailer. There was a construction project that was taking place at the cemetery that was overseen by G&C Fab-Con with Scungio Borst & Associates, LLC as the general contractor and Travis, Inc. as the electrical contractor. White sued all three contractors who then filed a third-party complaint against Mobil Mini, Inc., the company that installed the trailer, but they were later dismissed. White’s counsel provided photos of the pipe which showed it protruded several inches out of a gravel path. They alleged that G&C and Scungio Borst were negligent in failing to ensure that the pipe was properly submerged under the gravel and that Travis was negligent in failing to create a deep enough trench for the pipe. The companies’ counsel stated that the pipe only protruded a half-inch and that White was not watching where he was going. White alleged that he hit his head from the fall. He went to the emergency room and was diagnosed with a concussion and released. White claimed that he suffered from headaches after the incident. He went to his family doctor and later a neurologist who diagnosed post-concussion headaches and memory loss and prescribed medication. White also began to suffer from anxiety and depression. He sought to recover around $41,000 in medical costs. White’s neurologist testified that his condition had plateaued and that his headaches are permanent. White stated that he cannot return to work and that he continues to suffer from anxiety and depression and that he experiences migraine headaches two to three times a week. The companies’ expert concluded that White suffered a minor concussion which he had recovered from. White’s expert maintained that headaches from a concussion could last for years. The parties negotiated a high-low stipulation in which the defendants’ liability could not exceed $2.5 million but could not fall below $400,000. The jury found White to be 20% liable and that G&C and Scungio Borst were 40% liable and awarded White $300,000 which was automatically raised to $400,000 the stipulation. This case demonstrates the importance of expert medical testimony to establish exactly what is wrong with the plaintiff, so that any damages awarded accurately reflect the proven injuries. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Court Rejects GC's Summary Judgment Motion on Additional Insured Issue (NY) August 19, 2021 < Back Share to: In Gemini Insurance Company v. Certain Underwriters at Lloyd's, et al. New York County Supreme Court examined whether a general contractor was entitled to additional insured coverage from a plaintiff's employer, who was a third-party defendant in the underlying personal injury action. Hernandez, an employee of Source, was injured while working at a jobsite. Hernandez sued CM (general contractor) and Aventis (project owner). A declaratory judgment action ensued, where plaintiff Gemini (CM's insurer) sought a declaration that Lloyd's (Source's insurer) owed additional insured coverage to CM. The court denied Gemini's motion finding plaintiff did not establish all conditions to qualify as additional insureds were satisfied as Hernandez's complaint did not allege his injuries were caused in whole or part by acts or omissions of Source. Notably, Source's policy with Lloyd's designates additional insureds “only with respect to liability for ‘bodily injury’…caused, in whole or in part by: 1. [Source's] acts or omissions, or 2. The acts or omissions of those acting on [Source's] behalf.” (NYSCEF No. 43 at 47.) And Gemini failed to establish, either through pleadings or discovery, that Source's acts or omissions caused Hernandez's injury. This decision comes down to the wording of the contract between Source and CM, in conjunction with the Source policy language. The policy calls for AI coverage for body injury stemming from Source's acts or omissions -- which Gemini failed to establish. Now, had the policy language called for AI coverage for all liabilities "arising out of" Source's work, the Court's decision may have been different. Please email Brian Gibbons with any questions. Previous Next Contact

News Happy Thanksgiving From Your Friends At WCM! November 22, 2023 < Back Share to: Earlier this week, we celebrated “Worksgiving” at our NYC office, and had a great spread (which we are still digging through a few days later.) We had a plentiful feast as you can see in the picture below! We also wish a Happy thanksgiving to all our clients, colleagues and friends families. Previous Next Contact

News PA Courts Put A Limit On Extensive Discovery July 29, 2022 < Back Share to: In a recent case from the Eastern District of PA, Fost v. Kennedy, the court denied the plaintiff’s motion to compel the defendant to produce extensive documents in a punitive damages case. In this auto accident case, the court held several discovery conferences to resolve discovery issues. The parties exchanged seven letters concerning discovery. The court finally ruled on a motion to compel finding that the plaintiff is due discovery responses, but the defendant cannot be compelled to produce documents that do not exist. The plaintiff in the case brought punitive damages claims against a truck driver and his employers alleging that the defendants acted recklessly. As a result, the plaintiff sent discovery request demanding hundreds of hours of videos of the employee’s truck driving. The court found that the plaintiff was due discovery responses, but the extensive discovery requests were disproportionate. At this point the trucking company and produced almost one weeks’ worth of video prior to the accident. Citing a ruling from the Middle District of PA, District courts must not impose “inordinate and expensive burden[s]” in discovery. Westfield Ins. Co. v. Icon Legacy Custom Modular Homes, 321 F.R.D. 107, 118 (M.D. Pa. 2017). As a result, the court denied the plaintiff’s request for production in relation to the video footage. Thanks to Kevin Riley for his contribution to this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News NY Labor Law: When the Roof Falls In January 23, 2009 < Back Share to: http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08197.htm Does Labor Law section 240, otherwise known as the scaffolding law, apply when a plaintiff falls through a permanent structure such as a roof? The issue was recently decided by a New York appellate court in Jones v. 414 Equities, LLC., where the court dismissed plaintiff’s section 240 claim and adopted a forseeability test. Using the forseeability test, courts will first determine whether there was any indication prior to the accident that the work surface would collapse or was in any way weakened. If there is no foreseeable risk of a floor collapse, then the plaintiff's claims should be dismissed. Previous Next Contact

News Medical Shocker: Patients Can Waive Right to Jury Trial August 18, 2010 < Back Share to: Both federal and state legislatures have expressed a preference for binding arbitration where the parties so agree. In the absence of fraud, duress or unconscionability, the courts routinely enforce those private agreeements and compel arbitration. There is little judicial hesitation to enforce arbitration agreements when agreed between two sophisticated commercial parties. They are common requirements in any brokerage or employment agreement. Can a physician compel her patient to arbitrate any disputes over the quality of care provided the patient? Is such a requirement unenforceable per se as a violation of public policy and unconscionable? The New Jersey Appellate Division recently held that an agreement to arbitrate medical disputes is not per se unenforeable. Given the legislature's approval of arbitration as codified in the state's Arbitration Act, there appears to be few limits to an agreed upon written agreement to arbitrate as long as the language and execution process seem fair. In Moore v. Woman to Woman Obstetrics, the court rejected an absolute ban on arbitration agreements between a doctor and patient but reversed the grant of summary judgment to the defendant based on the factual record before the court. Arbitration is here to stay. A carefully and equitably drafted arbitration agreement is crucial to its enforcement. But defendants must be careful not to overreach and ensure that the execution process is fair if they hope to have the agreement enforced by the courts. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com http://pdf.wcmlaw.com/pdf/bindingarbitration.pdf Previous Next Contact

News Virus Exclusion At Play for Pennsylvania Law Firm (PA) October 8, 2020 < Back Share to: The Eastern District of Pennsylvania recently dealt with an attorney filing a lawsuit after her law firm was forcibly shut down as a result of the Coronavirus pandemic. In Rhonda Hill Wilson, et al. v. Hartford Casualty Co., et al. the District Court granted the defendants’ motions to dismiss for failure to state a claim after determining that the plaintiffs’ claims were barred by the virus exclusion within the insurance policy. Rhonda Hill Wilson and The Law Office of Rhonda Hill Wilson (“Plaintiffs”) alleged that Hartford Casualty Company (“Hartford”) and USI Insurance Services, LLC (“USI”) breached their insurance contract by denying their claim for insurance coverage arising from the interruption of their business caused by the Coronavirus and resulting governmental closure orders. Specifically, the policy includes Civil Authority coverage for business interruptions caused by order of a civil authority, Lost Business Income & Extra Expense coverage, Extended Business Income coverage, and Business Income Extension for Essential Personnel coverage, as well as Limited Fungi, Bacteria, or Virus coverage. The Civil Authority provision of the policy applied to the actual loss of business income sustained when access to the policyholder’s scheduled premises is prohibited by order of a civil authority as the direct result of a Covered Cause of Loss to property in the immediate area of the scheduled premises. Additionally, the policy provided coverage to pay for lost business income due to the required suspension of a policyholder’s operations, whether the loss was the result of a civil authority order or not. However, the suspension must be the result of direct physical loss of or physical damage to property at the scheduled premises, caused by or resulting from a Covered Cause of Loss. Here, the Plaintiffs claimed they suffered a Covered Cause of Loss to property because the Coronavirus caused direct physical damage and loss of property at their scheduled premises. Specifically, the physical harm to the property consisted of impairment of its value, usefulness, and/or normal function and rendered the property unsafe and unusable. Additionally, the Plaintiffs alleged that the Limited Fungi, Bacteria, or Virus Coverage applied because it was “probable that COVID-19 particles have been present at Plaintiffs’ building and premises.” Finally, the Plaintiffs claimed to have suffered substantial business income and other financial losses. Ultimately, the District Court determined that a virus exclusion applied and Plaintiffs did not fall within any exemption to that exclusion. The District Court relied upon fundamental contract interpretation and the clear and unambiguous language of the policy in reaching its decision. Specifically, the Hartford policy stated that it “will not pay for loss or damage caused directly or indirectly by . . . [p]resence, growth, proliferation, spread or any activity of ‘fungi’, wet rot, dry rot, bacteria or virus.” Additionally, the policy language states that the exclusion applied despite any other cause or event that contributes concurrently or in any sequence to the loss as well as whether or not the loss event results in widespread damage or affects a substantial area. Additionally, the District Court opined that, to the extent that Plaintiffs allege that the governmental closure orders are a separate cause of loss, they failed to provide an explanation as to why the Civil Authority coverage would not be precluded by the virus exclusion. In fact, the District Court stated that, even if Plaintiffs could provide such an explanation, the virus exclusion would still bar coverage because of the anti-concurrent causation clause within the virus exclusion stating that such a loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss. Determining that the unambiguous virus exclusion applied, the District Court granted Hartford’s Motion to Dismiss. The District Court also granted USI’s Motion to Dismiss for the same reasons as well as for Plaintiffs failure to plead any independent wrongdoing by USI. Overall, the main takeaway from this lawsuit is the significant barriers to coverage when a virus exclusion is incorporated into an insurance policy. Additionally, this case once against emphasizes the importance of clear and unambiguous language within an insurance policy, this time demonstrated through a virus exclusion. Thanks to Zhanna Dubinsky for her contribution to this post. Any questions, please contact Georgia Coats. Previous Next Contact

News Is Routine Cleaning Protected Under the Labor Law August 11, 2022 < Back Share to: The Labor Law protects a plaintiff when he or she is engaged in the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure. But what defines cleaning? In the case of Healy v. EST Downtown, LLC, 191 A.D.3d 1274 (4th Dep’t 2021), plaintiff was employed as a maintenance and repair technician by a certain building property manager. Plaintiff’s regular duties included making the building’s rental properties ready for incoming tenants by doing various things such as repairing fixtures and painting. On the day of his accident, plaintiff was responding to a commercial tenant’s work order by removing a bird’s nest, when he fell from an unsecured eight-foot ladder that moved when a bird suddenly flew out of the nest. On appeal, the Court of Appeals reversed the Fourth Departments holding and granted defendant’s motion to dismiss plaintiff’s Labor Law §240(1) claim. The court in Healy v. EST Downtown, LLC, 2020 NY Slip Op 02836, 38 NY3d 998 (April 28, 2022), held that to recover under section 240 (1) for an injury caused by a failure to provide such safety devices, plaintiffs must first show that they were engaged in one of that section's enumerated activities including, among others, "cleaning.” To determine whether plaintiff’s work was “cleaning” under the statute, courts apply a four-factor analysis, the first of which requires that the work be routine in the sense that it is a type of job that occurs relatively frequently and on a recurring basis as part of the ordinary maintenance and care of commercial premises. The court reasoned that plaintiff’s work was routine cleaning and thus, plaintiff’s activity could not receive protection under the Labor Law. Thank you to Gabriella Scarmato for her contribution to this article. Should you have any questions, contact Andrew Gibbs. Previous Next Contact

News Personal Liability And The New Jersey Consumer Fraud Act March 8, 2024 < Back Share to: Individual defendants can be held personally liable under the New Jersey Consumer Fraud Act (“CFA”). The New Jersey Supreme Court has explained under what circumstances the owners and employees of a corporation may be individually liable for CFA violations that are directly attributable to acts undertaken by them through the corporate entity. Allen v. V & A Bros. , 208 N.J. 114, 117, 26 A.3d 430, 432 (2011). In 2002, plaintiffs purchased a home in Princeton Township that was in need of landscaping. The scope of that work included building a retaining wall and creating a level area on the property where the pool could be installed. Plaintiff contracted with V and A Brothers, Inc. to level the property and build the retaining wall. While constructing the retaining wall, V&A Bros did not obtain final approval to substitute the type of backfill used to support the wall. The construction of the retaining wall required the use of backfill to support the wall. Plaintiffs assert that V and A Brothers, Inc. did not use the specified backfill, but instead substituted an inferior grade of fill that defendants trucked to plaintiffs' property from one of defendants' other construction sites. The trial court granted a motion to dismiss the complaint against the individual defendants. Reasoning that the CFA did not create a direct cause of action against the individuals, the court instead applied a traditional veil-piercing approach to plaintiffs' claims against the individuals. The Appellate Division reversed the trial court’s order dismissing the claims against the individual defendants finding support for individual liability in the statutory language of the CFA. The Supreme Court of New Jersey granted defendants’ petition for certification in which they challenged the conclusions of the appellate panel as to the basis for imposing individual liability. They conclude that, “focusing first on the statute's definition of person, N.J.S.A. 56:8–1(d) , there can be no doubt that the CFA broadly contemplates imposition of individual liability . The very breadth of the definition itself lends strong support to the proposition that, the CFA permits the imposition of individual liability upon one whose acts are part of a violation by a corporation.” The more complicated question raised in Allen , was whether an employee or officer of a corporation may also be liable individually when the basis for the CFA claim is a regulatory violation rather than an affirmative act or knowing misrepresentation. The Supreme Court found this to be a more fact sensitive determination and used this example for instruction. “A distinction can be drawn between the principals of a corporation and its employees. However, if the employee unilaterally concludes that an inferior product should be used in place of one specified in a contract and does so without the knowledge of the homeowner, there is little reason to construe the CFA to limit liability to the corporate employer and permit that employee to escape bearing some individual liability . Allen v. V and A Bros Inc. .pdf Download PDF • 310KB Previous Next Anand P. Tayal Anand P. Tayal Associate +1 267 665 0014 apandittayal@wcmlaw.com Contact

News NJ Appellate Division Reverses $1.00 Jury Verdict For Permanent Injuries. May 10, 2010 < Back Share to: In Smithson v. Garcia, the Appellate Division reversed the denial of a new trial on damages where the jury found that plaintiff had sustained a permanent injury meeting the verbal tort threshold, but awarded nominal damages of one dollar. The Court found it clear that plaintiff's permanent injury stemmed from 2 herniated discs attributable to the motor vehicle accident and concluded that allowing the jury's one dollar damages award to stand would be manifestly unjust under the circumstances. http://www.judiciary.state.nj.us/opinions/a2222-08.pdf Previous Next Contact