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News No Joy In Mudville: Plaintiff's Case Strikes Out (NY) March 26, 2021 < Back Share to: In Chiaramonte v. Town of Smithtown, plaintiff was playing in a charity softball tournament sponsored by the defendants when she slipped on a muddy surface of one of the fields running from second to third base, allegedly injuring herself. The plaintiff subsequently commenced the instant action to recover damages for personal injuries against the defendants, alleging that they were negligent in the maintenance of the subject field. The defendants moved for summary judgment dismissing the complaint on the ground, among others, that the plaintiff assumed the risk of her injuries. The Supreme Court granted the motion, and the plaintiff appeals. The Appellate Division, Second Department, upheld the lower Court ruling under the doctrine of primary assumption of risk. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation. Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks. Here, the plaintiff admitted to observing that the field on which she was injured was “pretty muddy” prior to her accident, and testified at her deposition that she knew that it had rained the day before the accident. The plaintiff, a seasoned softball player and coach, further testified at her deposition that she had played softball previously in the rain and was fully aware that she could be injured at any time playing softball. The evidence submitted in support of the motion demonstrated that the plaintiff knew of the muddy conditions on the subject field and voluntarily chose to play anyway, and that she was readily aware of the risks inherent in the game of softball. Thus, she assumed the risk of slipping on mud on this field at the time of the subject accident. Thanks to Paul Vitale for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News WCM’S NEW JERSEY OFFICE LEADS THE WAY IN STATEWIDE HIGH SCHOOL MOCK TRIAL PROGRAM (NJ) February 15, 2019 < Back Share to: Wade Clark Mulcahy’s New Jersey office led the way in Union County in participating in the annual Vincent J. Apruzzese High School Mock Trial Program which is sponsored by the New Jersey Bar Foundation. The Mock Trial Program provides high school students in the state of New Jersey with an opportunity to develop their advocacy skills and to experience what it is really like to be a trial lawyer. Teams are comprised of five individuals from each participating high school. Two students act as attorneys while three students act as fact and expert witnesses. Trials are conducted before experienced litigators who act as judges along with a student-comprised jury and often last three hours. In order to make the experience more realistic, the trials are conducted in actual courtrooms in the Union County Courthouse so students are able to feel what is like to try a case in a courtroom. The final round in the County is judged by a panel of sitting New Jersey Superior Court Law Division judges. The ultimate champion from each County then participates in a statewide contest with the winner of the statewide contest then proceeding to the national competition to compete against winners from the other 49 states and the District of Columbia. WCM’s New Jersey office had four of its attorneys participating as judges (Paul Clark, Tony Pinto, Mike Noblett and Brent Bouma) and was recognized by the state Bar Foundation for having the largest contingency of volunteer judges than any other firm in the County. In their role as judges, WCM attorneys not only adjudicated the trial but also provided detailed feedback to the teams regarding their performances and provided our own insight into actual trials. In other years, WCM attorneys have also participated in the program as team coaches for high schools, volunteering our time to meet with competing teams twice a week to assist with preparing the teams for their competition. We were happy to participate in this worthy cause as a way to give back to our local community and to share our zeal and enthusiasm for trial advocacy. Previous Next Contact

News Mode Of Operation Does Not Apply Just Because Self Service Bins Are Present. November 23, 2011 < Back Share to: In Cordasco v. Walgreen's, the New Jersey Appellate Division affirmed an order granting summary judgment to Walgreen's. Plaintiff claimed that she was walking down an aisle in Walgreen's and that as she approached the end of the aisle, she slipped and fell on a waxy /crayon like substance on the floor next to 2 self servce bins containing mechandise. She had no idea where the substance on the floor came from, how long it had been there or whether any Walgreen employee knew about it prior to her fall. Plaintiff alleged that she was entitled to an inference of negligence under the mode of operation rule because Walgreen's was engaged in a self service operation in the area where she fell. The Appellate Division affirmed summary judgment finding no evidence that the self service bins contained open bags or containers, that the waxy / crayon type material was in the bins for sale or that the substance on the floor came from the bins. It therefore found that the mode of operation rule did not apply and that Plaintiff was required to prove actual or constructive notice which she could not do. http://lawlibrary.rutgers.edu/courts/appellate/a1636-10.opn.html Please contact Robert Ball with any questions regarding this post. Previous Next Contact

News Appeals court questions sovereign immunity defense in WTC MC 100 case. October 3, 2007 < Back Share to: http://www.insurancejournal.com/news/east/2007/10/03/83978.htm?print=1 Previous Next Contact

News Evidence of Remedial Measures Inadmissible (PA) September 20, 2017 < Back Share to: The Superior Court of Pennsylvania recently upheld a lower court’s judgment in favor of the defendant in Gold v. Plesset Properties. The case arises out of a slip and fall on July 8, 2011 when plaintiff Debra Gold slipped and fell exiting Plesset Properties Partnership’s (“PPP”) property. Shortly after the incident, PPP installed skid-resistant adhesive strips to prevent future slipping in the area. Gold filed a complaint against PPP alleging negligence. On the eve of trial, PPP filed a motion to exclude any evidence at trial mentioning remedial measures to the property subsequent to the incident, such as the skid-resistant strips. Gold filed her own motion seeking to preclude PPP’s expert testimony. The court granted PPP’s motion and denied Gold’s. The subsequent jury trial found PPP not negligent and Gold appealed. Gold asserted that the trial court erred in not permitting her to cross-examine a part owner of PPP on subsequent remedial measures. Generally, in Pennsylvania, evidence of subsequent remedial measures is not admissible to show negligence. However, it can be admissible for impeachment, to show ownership of a property, or the feasibility of precautionary measures. The court disagreed with Gold and found there was no basis for impeachment in the matter since the witness did not contradict himself on ownership or the existence of skid-proof strips. Gold also argued that the court erred in denying her to cross-examine PPP’s expert on subsequent remedial measures. The court again disagreed with Gold and found that the defense’s expert did not base any of his testimony on the remedial measures, but rather solely the video of the incident. Gold also argued unfair surprise in that she was unaware that PPP’s expert would testify. Again, the court denied this argument and cited that Gold was notified the expert would testify a month before trial and was provided with his report in PPP’s pre-trial report 30 days before trial. This case demonstrates the factor of subsequent remedial measures in cases. It is important for defense counsel to keep an eye on repairs and remedial measures made by clients. Plaintiff’s counsel will try to use this as evidence that a defendant was negligent, because “why wouldn’t they be negligent if they’re installing remedial measures?” The rationale behind excluding evidence of subsequent remedial measures is policy-based. In short, property owners will be less inclined to improve defects, if evidence of those improvements help a plaintiff's case. Evidence of such measures present a compelling, but prejudicial argument to a jury, making it all the more important that defense counsel seek to preclude such evidence, and make sure their expert relies on the pre-repair conditions in his findings. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Art Crime on the Rise? August 25, 2011 < Back Share to: According to recent reports, the answer is "yes." Previous Next Contact

News Hotel Owed No Duty to Shooting Victims at Music Event (NJ) May 26, 2017 < Back Share to: In Higgins v. Holiday Inn, the Appellate Division analyzed whether a hotel owed a duty to take reasonable precautions by providing security for an event held at the hotel. For nineteen weeks, Disc Jockey Clarence Francis hosted and performed at a weekly “Caribbean Nights” event held at the hotel without any incidents of violence. However, on the twentieth week, plaintiffs were smoking outside the hotel when an unidentified, masked gunman approached and shot them, wounding them in their legs. Subsequently, plaintiffs sued the hotel and during discovery found information relating to criminal activity at the hotel, which included assault, robbery, and rape. Plaintiffs argued that the hotel had a duty to provide security at the Caribbean Nights event because the hotel’s history of criminal activity created a reasonable foreseeable risk of harm to the plaintiffs. Specifically, plaintiffs contended that the circumstances involving the prior criminal activity at the hotel, the late hour, and the festive environment of the Caribbean Night event should have caused defendant to anticipate "loitering, under-age drinking, drugs and fights." Thus, plaintiffs argued when these circumstances are considered together, they imposed upon the hotel a heightened duty to take safeguards against criminal acts of third parties, which include the shooting that caused plaintiffs’ injuries. The Appellate Division disagreed with the plaintiffs, holding that there was no competent evidence supporting a finding that the hotel could have reasonably foreseen plaintiffs’ shooting. The court reasoned that during the nineteen prior Caribbean Night events there were no criminal incidents. Further, during the hotel’s entire ten-year history, there were no incidents of shooting. Although the hotel had some past criminal activity, the court found this history was not so "alarming" or "escalating" that it would be reasonably predictive that attendees at the event could be affected by such a random act of violence. Thus, this case demonstrates that New Jersey courts utilize a "totality of the circumstances" analysis to determine an owner's liability to prevent third-party criminal conduct on the owner’s premises. Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Changing Weather Patterns: Ongoing Storm Rule To Be Addressed By The NJ Supreme Court (NJ) October 1, 2020 < Back Share to: The matter of Pareja v. Princeton International Properties arose out of a slip and fall in front of the defendant’s store due to ice. Plaintiff had fallen while sleet was still falling. The trial court granted defendant’s motion for summary judgment pursuant to the ongoing storm rule that holds that the landowner or possessor’s duty to take reasonable steps to make safe abutting walkways commences when precipitation ends. The Appellate Division reversed, citing that the ongoing storm rule had gone too far through misapplication of Supreme Court precedent in prior Appellate Division rulings. We previously blogged on this prior decision. Earlier this September, the New Jersey Supreme Court granted certification on the issue of whether a commercial landowner must take reasonable steps to make safe an abutting public walkway reasonably safe while precipitation is falling. It will be interesting to see how New Jersey’s Supreme Court will decide this issue. Most states follow the ongoing storm rule, so we will see whether New Jersey will join with the majority of other jurisdictions. We will be following this case closely. Thanks to Mike Noblett for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News PA Court Reverses $21 Million Bad Faith Judgment Against Auto Insurer April 26, 2018 < Back Share to: In Berg v. Nationwide Mutual Insurance Company, plaintiff sought coverage from Nationwide for repairs to their vehicle after an auto accident. Ultimately, the plaintiffs ended up suing Nationwide for bad faith, due to Nationwide's decision to repair the plaintiffs’ vehicle rather than declaring it a total loss. Nationwide initially received an estimate that the vehicle should be totaled, but rejected it, repaired the vehicle, and returned what it allegedly knew was a dangerous vehicle back to its insured. Plaintiffs asserted claims for negligence, fraud, conspiracy and insurance bad faith. After a trial, the jury found in favor of Nationwide on all counts except for the catchall provision of the Unfair Trade Practices and Consumer Protection Law, or UTPCPL. The jury awarded the plaintiffs $295.00. But in the second phase, the trial court found that Nationwide acted in bad faith by repairing the plaintiffs’ vehicle rather than declaring it a total loss and ordered Nationwide to pay $18 million in punitive damages and $3 million in attorneys fees. On appeal, the Superior Court noted that a finding of bad faith will be reversed where the trial court’s critical findings are either unsupported by the record or do not rise to the level of bad faith. In this case, the Superior Court reversed the trial court’s finding of bath faith, finding that the evidence of record did not support the trial court’s finding that Nationwide overrode or vetoed a total loss appraisal. Upon review of the record, the Superior Court found that the record indicated that Nationwide and the entity handling repairs had support to determine that plaintiffs’ vehicle was repairable. In support of its reversal, the Superior Court noted that the record did not support a finding that Nationwide had actual knowledge of or recklessly disregarded any knowledge of the vehicle’s allegedly faulty condition when the repairing entity returned it to plaintiffs. In addition, the Superior Court admonished the trial court for incorporating an irrelevant critique of the insurance industry in its holding, stating that a judge sitting as fact finder should confine his or her analysis to the facts of the case at bar without consideration of the perceived ills of the insurance industry in general. Thanks to Alexandra Perry for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Repairs vs. Maintenance Under New York's Labor Law January 22, 2009 < Back Share to: In Pakenham v. Westmere Realty, a New York appellate court recently addressed the difference between “repairs” and “routine maintenance” in the application of Labor Law §240. Pakenham, a service technician, responded to a call regarding a lack of heat at the Westmere Realty office after hours in the winter. While working, Pakenham fell from a ladder. The lower court found that the plaintiff’s work was “routine maintenance” and dismissed his labor law claim. The Appellate Division reversed and determined that the plaintiff’s work on a snow covered roof after normal business hours in the dark was a “repair,” and a protected activity under Labor Law §240. http://decisions.courts.state.ny.us/ad3/Decisions/2009/504889.pdf Previous Next Contact

News Florida Appellate Court Approves Of Insurer’s Right-to-Repair In Lieu Of Payment Clause March 4, 2022 < Back Share to: People’s Trust Insurance Company takes an unorthodox approach to homeowner’s insurance, “In return for a premium discount, the [] policy contain[s] a Preferred Contractor Endorsement” which gives “People's Trust a right-to-repair option, i.e., after inspecting a covered loss, People's Trust ha[s] the option to select its own contractor [and] to repair the damages to the insureds’ property in lieu of issuing a loss payment that would otherwise be due under the policy.” See, People's Trust Insurance Co. v Tosar, 46 Fla. L. Weekly D 2651, 2021 Fla. App. LEXIS 15605, 2021 WL 5912737 (Fla. 3d DCA December 15, 2021). After their home was damaged by Hurricane Irma, the insureds’, Mr. & Ms. Tosar made a claim. Peoples Trust did not dispute coverage and, after timely inspection, elected to repair all covered damage exceeding the policy’s deductible. The insureds challenged Peoples Choice’s estimate, and Peoples Trust triggered the policy’s appraisal clause. Instead of proceeding with the appraisal, the insureds sued. Peoples Trust asked for, and the court compelled appraisal. The appraisal award exceeded Peoples Trust’s initial estimate and, pursuant to its policy, Peoples Trust asked the court to require the insureds to authorize it to make the required repairs. After the court declined to do so, the insureds asked the court to order Peoples Trust to pay them the appraisal award. The trial court ordered Peoples Trust to pay the appraisal amount less the deductible, and Peoples Trust appealed. The appellate court found that the policy was not ambiguous and that that appraisal award simply established the scope of the repairs to be performed “in lieu of a loss payment.” The appellate court found the policy’s “right-to-repair option” valid and enforceable, and ordered the trial court to enforce the policy as written. Florida is in the midst of an insurance crisis. Homeowners’ insurance generally, and windstorm coverage in particular, is hard to find and expensive. In reaching its decision, the appellate court signaled that Florida’s courts will enforce creative policies, that lower insurance costs, so long as the policy unambiguously explains the nature and scope of the insurance provided. Thanks to Charles “Chip” George for his contribution to this post. Please contact Chip with any questions Previous Next Contact

News Is US Maritime Law About to Significantly Change? July 7, 2010 < Back Share to: Some would argue that crisis begets opportunity. It appears that the BP oil spill may be the opportunity needed by US legislators to fundamentally change US maritime law. According to press accounts, Congress is currently considering revisions to the Death on the High Seas Act, the Limitation of Liability Act and the Jones Act. Congress is also considering revisiting the appropriateness of punitive damages awards in maritime cases. Obviously, if any of these statutes are changed, the "seascape" of maritime law in the US will be altered. http://www.nytimes.com/2010/07/06/business/06seas.html?_r=1&scp=1&sq=maritime&st=cse If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact