News App. Div: School's are Not Insurers of Student's Safety During Recess May 8, 2012 < Back Share to: In Benavides v Uniondale Union Free School Dist., the infant-plaintiff - a second-grade student - commenced an action against his school for inadequate supervision after he was pushed down a slide by a fellow student during recess. The school established its entitlement to summary judgment by showing the playground was adequately supervised and that the level of supervision was not a proximate cause of the subject accident. In affirming the decision, the Appellate Division stated schools cannot reasonably be expected to continuously supervise and control all movements and activities of its students and cannot be held liable for every thoughtless or careless act by which one pupil may injure another. Notably, the Second Department considered the plaintiff's 50-h hearing testimony. Typically, trial courts have required a hearing to determine if an infant is swearable (understands the obligation to testify truthfully) before considering any testimony. Here, the plaintiff's attorney claimed that the testimony was inadmissible because of his client's age. However, the court refused to consider the plaintiff's argument stating it was improperly raised for the first time on appeal. Thus, as the swearability of an infant plaintiff does not present a pure question of law appearing on the face of the record, the Courts have the discretion to consider an infant's testimony at face value without such a hearing. Thanks to Bill Kirrane for this post. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News PA Supreme Court to reconsider major UIM stacking decision. October 18, 2007 < Back Share to: In a rare move, the Supreme Court will reconsider its April 2007 decision in which it ruled that insurance companies must have their customers reject stacked underinsured motorist coverage each time they add a vehicle to their policy. http://www.law.com/jsp/pa/PubArticleFriendlyPA.jsp?id=1192611804884 Previous Next Contact

News No FSMA Regulations? Then Sue. December 7, 2012 < Back Share to: The long awaited Food Safety Modernization Act Regulations have still yet to arrive. In an attempt to force the FDA's hand, a lawsuit has been filed. The lawsuit, filed by a consumer watchdog group, is attempting to force the FDA to issue the long awaited regulations and otherwise enforce the FSMA. At first blush, the lawsuit seems unlikely to succeed (because of a whole range of legal problems, e.g. standing and sovereign immunity), but perhaps it might finally spur the FDA to act. Continue to stay tuned. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Recent Litigation Tracking Indicates Early Wins For Insurers In COVID Cases September 4, 2020 < Back Share to: Recent court decisions on "business interruption" coverage claims related to COVID-19 seem to be tentatively favoring insurers with respect to claims for lost income during the COVID-19 pandemic. Several jurisdictions have ruled for insurance companies, including state courts in California, Michigan and the District of Columbia, as well as in federal courts in Texas and California. Two other judges have indicated that they would rule against COVID-19 claims brought by a Miami restaurant and a magazine publisher. In fact, the publisher, Social Life Magazine, withdrew its case before a Manhattan federal judge issued a written opinion. However, many lawyers for policyholders aren’t giving up hope, as many suits are awaiting a decision, and appeals courts have yet to rule. In addition, many lawyers for insureds are focusing on a Missouri federal judge’s Aug. 12 ruling allowing business interruption claims to proceed. As insurers are aware, many business interruption policies require “direct physical loss or damage” to property for coverage to apply. Others specifically exclude coverage for damage caused by viruses. The plaintiffs in the Missouri business interruption case had argued that the coronavirus is a physical substance that attached to and damaged their properties, and their all-risk policies should cover lost income. The policy in the Missouri case did not exclude virus damage but did require a direct physical loss. In an interesting indication of things possibly to come from COVID-19 business interruption litigation, the Insurance Information Institute said the federal government, rather than insurers, should help. As court losses mount, a coalition of small businesses is backing a House bill, the Business Interruption Relief Act. The bill would create a voluntary program for insurers to pay claims and obtain reimbursement from the federal government. We will continue to keep you updated as events progress. Thanks to Joseph S. Anzalone for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News PA Supreme Court to Re-visit Strict Liability in Product Liability Cases. March 16, 2008 < Back Share to: Since 1978 in the case of Azzarello v. Black Brothers Co. Inc., the PA law on products liability cases is that a product is defective if it left the manufacturer "lacking any element necessary to make it safe or having any element making the product unsafe." This strict liability standard is about to be revisited as the Supreme Court has just granted allocatur in Bugosh v. I.U. North America Inc.. In this case, the Court will decide whether to adopt the Restatement Third on Torts which employs a negligence standard in product defect cases. http://www.palawweekly.com/plw/getarticle.aspx?ID=25284 Previous Next Contact

News Intentional-Acts Exclusion Inapplicable to Innocent Abuse Victim (PA) June 7, 2013 < Back Share to: In a recent case of first impression, the Pennsylvania Superior Court held that the Commonwealth’s Unfair Insurance Practices Act prohibits carriers from relying on intentional-acts exclusions to disclaim coverage of claims under a property policy arising out of domestic abuse by another insured. The Superior Court also held that the unauthorized and fraudulent cancellation of a couple’s homeowner’s policy by one spouse as part of a pattern of domestic abuse against the other cannot effectively cancel the policy. In the case of Lynn v. Nationwide Insurance Company, an insured presented property damage claims under his homeowners policy following a failed murder-suicide in which his co-insured wife attempted to kill herself and her children by burning down the family home. She left a disturbing suicide note to her estranged husband that stated "Have a great fucking life knowing that the kids will always be with me now. I leave you absolutely nothing." Following Nationwide’s disclaimer of coverage on the basis of an intentional-acts exclusion contained within the policy, the insured filed suit alleging breach of contract and bad faith. Specifically, the insured argued that while the exclusion would ordinarily bar coverage, Pennsylvania’s Unfair Insurance Practices Act nonetheless prohibits carriers from denying claims under a property policy that arise out of incidences of domestic abuse by an insured. To this end, the insured presented evidence demonstrating a systematic pattern of abuse by his wife that culminated in arson as a means of forever depriving him of his children. Still, the trial court was unconvinced and granted Nationwide summary judgment on the basis that the Act proscribes only those disclaimers that intentionally discriminate against victims of abuse. On appeal, however, the Pennsylvania Superior Court reversed, holding that the relevant portion of the UIPA was enacted specifically “to create a statutory prohibition against an insurance company’s refusal to pay a homeowners policy/casualty claim arising out of abuse to an innocent claimant when an abusive spouse caused the property damage.” Further, the Court explained that the lower court’s interpretation would run afoul the statute’s clear purpose by virtually guaranteeing that innocent co-insured’s would never be paid for intentional acts of abuse. As a matter of law and policy, therefore, the Superior Court readily concluded that traditional intentional-acts exclusions are largely inapplicable to those claims stemming from purposeful abuse. While the decision in Lynn v. Nationwide Insurance Company clearly illustrates that Pennsylvania’s public policy favors insurance coverage for those innocent insureds who have suffered losses as the result of domestic abuse, the Superior Court was also quick to caution that the UIPA does not create per se coverage of the abused. To the contrary, the Lynn Court found that the Act’s structure and history expressly reject the notion of “a special class of insureds who would be automatically covered solely because they are victims of abuse,” reaching instead only those claims derived directly from the abuse. Thanks to law clerk (and soon to be law school graduate and attorney) Adam Gomez for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com   Previous Next Contact

News Falling Object: Labor Law Violation or Simple Premises Liability (NY) May 23, 2019 < Back Share to: Plaintiffs have come to rely on the strict liability imposed by Labor Law 240 to secure high settlements/verdicts. However, the case below demonstrates that not every complaint that comes in with allegations of Labor Law violations is grounds for concern. In Djuric v. City of New York, a pollution control plant that had previously sustained fire damage was undergoing renovation work. The plaintiff was employed by the steamfitting subcontractor hired to perform mechanical work in the building. While working, the plaintiff was struck in the back of the neck by a pipe saddle that came lose from an overhead pipe hanger. All of the defendants moved to dismiss the plaintiff’s Labor Law 240 and 241(6) claims. The lower court granted the motion. The First Department affirmed the decision, finding that the pipe saddle did not constitute a “falling object” under Labor Law 240 because it was not in the process of being hoisted or secured and there was no evidence that the pipe saddle fell because of the absence of a safety device. The appellate court further noted that the pipe saddle was a permanent part of the structure and that its defect was latent and, as such, the defendants could not have known of its potential condition prior to the accident. Finally, the Court held that the Industrial Code cited by the plaintiff under Labor Law section 241(6) was inapplicable because this object that fell from above was not part of the construction debris but, rather, was a fixture of the building which became dislodged. In other words, because the object that fell from above was not installed, altered, or in any way tampered with during the construction, the Court in the above case analyzed the defendants’ potential liability exposure through the lens of a premises liability action rather than scrutinizing it more strictly under the Labor Law’s guidelines. Thank you to Margaret Adamczak for her contribution to this post.   Previous Next Contact

News NY's First Department rules that SDNY has exclusive jurisdiction over WTC claims. September 21, 2007 < Back Share to: The decision focuses on the federal pre-emption doctrine as applied to both "any statute-of-limitations arguments or arguments addressed to the sufficiency of the pleadings". http://www.courts.state.ny.us/reporter/3dseries/2007/2007_06810.htm Previous Next Contact

News Facebook Disclosure Trends in PA. November 23, 2011 < Back Share to: We have previously reported on the status of Facebook discovery in PA. The law continues to evolve. In the case of Largent v. Reed, a Franklin County, PA trial court was faced with the question of whether, in the context of an auto accident, the plaintiff had to turn over her Facebook username and password to the defendant. The trial court ruled for the defendant and ordered the disclosure. In the lengthy ruling, the court held that there can be "little expectation of privacy" on a social networking site because "only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets." More good news for defendants looking to unearth a secret or two to impeach the plaintiff's credibility! For more information about this post, or WCM's Pennsylvania practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Hot Cup of Tea and a Wobbly Table: Not a Recipe for Summary Judgment. November 5, 2013 < Back Share to: In Hassan v. Barnes & Noble Booksellers, Inc., the plaintiff was allegedly burned when a hot cup of tea fell off a wobbly table in a Barnes & Noble. The plaintiff sued Barnes & Noble and Starbucks for serving tea that was too hot, improperly securing the lid, and allowing customers to use a wobbly table. The court granted Starbucks summary judgment on the basis that it did not supply the tea (it supplied coffee products), did not train Barnes & Noble employees in preparation of the tea, and did not purchase or maintain the tables. The court, however, denied Barnes & Noble’s motion since it failed to establish that it did not have constructive notice of the allegedly defective table. To disprove constructive notice of a defective condition on its premises, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of the occurrence. Barnes & Noble offered no evidence as to when the table was last cleaned or inspected relative to the time of the plaintiff’s accident. It therefore failed to meet its prima facie showing of lack of notice of the dangerous or defective condition. As such, the court did not need to consider the other points of contention regarding the temperature of the tea and the lid. The moral is that in cases that rest on lack of notice, it is important to identify the routine inspections that occurred with regard to the defect early on in the case. It is imperative that your witnesses are prepared to face the constructive notice challenge. Without testimony of specific inspection, constructive notice will be difficult to disprove. For questions about this post, please contact cfuchs@wcmlaw.com Previous Next Contact

News Court Finds Defendants Did Not Exacerbate Hazard Though Engaged In Snow Removal During Storm August 12, 2022 < Back Share to: In Keeney v. Hempstead Turnpike, LLC, et al., the plaintiff appealed from an order granting summary judgment to defendant/second third-party plaintiff, Stop and Shop Supermarket Company, LLC (“Stop & Shop”), to defendant/third-party plaintiff, Hempstead Turnpike, LLC (“Hempstead Turnpike”), the second third-party defendant, S & S Levittown, LLC (“S & S”), and, on a separate motion, granted summary judgment to third-party defendant, East Coast Lot & Pavement Maintenance Corporation (“EC Lot & Pavement”) dismissing the complaint as against the defendant/third-party plaintiff, Hempstead Turnpike. Plaintiff slipped and fell on snow on a sidewalk in front of a store operated by Defendant Stop & Shop. The plaintiff sued Stop & Shop and the owner of the property, defendant Hempstead Turnpike, which in turn commenced a third-party action against EC Lot & Pavement, a snow removal contractor. Stop & Shop commenced a second third-party action against S & S, the holder of the ground lease for the property. The Court examined the facts under the now well-settled storm-in-progress rule citing that a property owner, tenant in possession, or, where relevant, a snow removal contractor is not liable for accidents caused by snow or ice that accumulates during a storm until sufficient time since a storm’s cessation has passed to allow the opportunity to mitigate any hazards caused by the storm. The Court noted, however, that if a landowner or tenant in possession decides to remove snow during a snowstorm, then, in such an instance, the landowner and tenant in possession must act with reasonable care not to create a hazardous condition or make worse a hazardous condition created by the storm. Though the plaintiff in the underlying action claimed the sidewalk looked like someone removed snow earlier in the day with parts of it having melted spots, did not have no salt or sand on it, had about ½ an inch of snow where the plaintiff slipped, and the parking lot was salted and sanded, the defendants here successfully established that their efforts to remove snow and ice from the sidewalk during the storm did not create a hazardous condition or exacerbate the natural hazard caused by the storm. This case serves as a reminder of the potential liability exposure of owners and tenants in possession along with those they contract with, such as a snow removal contractor, when attempting to ameliorate a snowy condition while snow is still falling from the sky, as well as, the factual depth and development necessary for the defense of such cases. Should you have any questions, contact John Diffley. Previous Next Contact

News Silence can be Deadly - Failure to Disclose Witness is Fatal to Plaintiff's Claim (NY) October 19, 2016 < Back Share to: The Second Department recently upheld a pretrial win for Muintir, LLC over claims launched by a customer who tripped on Muintir’s property in Gallway v. Muintir, LLC. In affirming, the Court found that there was no showing that Mutinir had actual or constructive notice of the defective condition that allegedly caused plaintiff's fall. On October 28, 2011, Gallway, was dining at Dalton Sea Side Grill, a Tenant of Muintir, with her granddaughter. Upon exiting the restaurant, plaintiff allegedly tripped and fell on a defect in the sidewalk abutting the premises, which was owned by Muintir, LLC. Plaintiff describes the defect as a crack radiating from a hole 1.5 inches deep with a diameter larger than a silver dollar. In her deposition she stated that she had visited the restaurant ten times in the year preceding her accident where she had never observed the alleged sidewalk defect. Muintir moved for summary judgment claiming they lacked actual or constructive notice of the defect in the sidewalk. In support of the motion, included was the deposition of an employee of the restaurant who testified that he did not observe the defect in the sidewalk. In opposition, Gallway submitted an affidavit of her granddaughter, a witness not previously disclosed, who stated she had seen the defect on a prior occasion. The Court refused to consider the granddaughters affidavit, finding for Muintir. The Appellate Court held that the motion court properly refused to consider the affidavit of the Plaintiff’s granddaughter to establish that Defendants had notice of the sidewalk defect that caused her grandmother to fall. Plaintiff failed to disclose her as a notice witness during discovery and did not offer a valid excuse for that failure. Without the granddaughter’s affidavit, the Appellate court found that plaintiff failed to establish the claimed defect was present for a sufficient length of time to give the Defendant constructive notice of its existence. The Court's ruling demonstrates that plaintiffs must take discovery seriously, including witness disclosure, lest they be precluded from relying upon such undisclosed information at trial. Thanks to Patrick Burns for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact