News WCM Philadelphia Partner Becomes Treasurer of Philadelphia Association of Defense Counsel June 30, 2021 < Back Share to: On June 21, 2021, WCM Partner Colleen E. Hayes was elected to the position of Treasurer of the Philadelphia Association of Defense Counsel, one of the oldest local defense organizations in the country. Colleen is a partner in WCM’s Philadelphia office and serves clients in commercial coverage related matters. Colleen was also recently selected as a Pennsylvania Rising Star for 2021. She also is on the DRI’s Young Lawyers Steering Committee. Previous Next Contact

News Expert Opinion Not Worth Bus Fare (NY) May 9, 2019 < Back Share to: In Salas v. Adirondack Transit Lines, Inc., a personal injury action, plaintiff sued the defendant bus company claiming they breached their duty to provide her with a safe place to disembark from their bus. The Second Department affirmed summary judgment in favor of the bus company and in doing so utterly rejected plaintiff’s expert affidavit submitted in opposition to the underlying motion. Plaintiff’s expert claimed there is a standard operating procedure in the bus industry where the bus driver offers assistance and warnings to customers when they are boarding or alighting the bus. The Second Department rejected the expert’s affidavit, however, observing he didn’t establish a sufficient foundation to show such an industry standard or practice in fact existed, nor did they cite a regulation or statute the defendant violated to cause the accident. Litigants can retain an expert to support almost any position for almost any issue, however, often the mere existence of an opposing expert report or affidavit is enough for a defendant to abandon their hopes of winning on summary judgment. While it’s true that courts are reluctant to break ties in Battles of Experts at the summary judgment phase, defendants should not abandon good motions in the face of an opposing expert opinion. Rather, as Salas shows, a defendant can prevail outright even if plaintiff hires an expert in an attempt to defeat the motion if the expert does not provide a sufficient basis for their opinion—and if a defendant properly attacks that opinion on reply. Thank you to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Be Careful What You Wish For (NY) December 21, 2018 < Back Share to: In Karras v Margaret Tietz Ctr. for Nursing Care, Inc. the Court assessed a motion to re-argue a prior decision to dismiss for lack of capacity. The initial suit listed “Marina Karras, as Proposed Administratrix of the Estate of Georgina Goyanes, deceased” as the plaintiff. The Court also amended the initial caption to eliminate the word proposed. Though Courts in New York are often liberal in their allowance to amend and cure defects. However, in this case the Court determined that this initial error could not be cured, as the plaintiff did not have standing the bring the suit, even though it was demonstrated that Marina Karras did eventually gain Letters of Administration and became the administratrix of the estate of Georgina Goyanes. This case serves as an important lesson for litigators who do not specialize in estate work when dealing with a deceased litigant. Often the practice of law leads us to encounter close relatives of our clients, some of which we may work with often. Notwithstanding how inevitable it may seem that a close family member becomes substituted for a client, litigants must allow that process to formalize before taking further action. Similarly, when an adverse party deceases, do not necessarily trust the actions of adverse counsel, as they may have overlooked formalized proceedings and purport to represent someone who they have no fiduciary or legal relation to. Thanks to Christopher Gioia for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News NY Appellate Division Rules Leaseholder Can Be Responsible for Sidewalk Fall February 23, 2010 < Back Share to: In Abramson v. Eden Farms Inc., the plaintiff tripped and fell over a cracked portion of the sidewalk abutting a store leased by Eden Farm. The plaintiff brought an action against Eden Farm for the personal injuries she suffered in her fall. Eden Farm moved for summary judgment arguing that it did not create the alleged defect in the sidewalk and that, as a leaseholder, it did not have a statutory duty to maintain the sidewalk in a reasonable safe condition. The trial court denied the motion and Eden Farms appealed. Upon appeal, the First Department affirmed the denial of Eden Farms motion. In its decision, the court noted that Eden Farm had ignored the provision of its lease that required Eden Farms to make all repairs and replacements to the sidewalks and curbs adjacent to the store. The First Department also found that there was a legal question whether the lease was “comprehensive and exclusive” that it would have reassigned the landowner's duty to maintain the sidewalk to Eden Farm. Thanks to Katusia Lundi for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_01418.htm Previous Next Contact

News New Jersey Tolerates Mulligans December 4, 2013 < Back Share to: Here, in America, among friends, mulligans are part of the game. In fact, President Clinton refused to count "do-overs" when calculating his score. In Scotland, by contrast, a mulligan off the tee, even among friends, is known as "Hitting Three." In Schick v. Ferlito, the New Jersey Supreme Court ruled that taking a mulligan when another golfer was in the "line of fire" (and failing to yell fore) constituted "reckless" conduct, and thus liability attached. In other words, in the context of recreational sports, to constitute a tort, conduct must exceed the level of ordinary negligence. A recent New Jersey decision, Corino v. Duffy, et. al., seemingly endorsed the free grant of mulligans among playing partners. Corino suffered a serious eye injury after being struck by a mulligan sliced off the tee box adjoining the fairway on which Corino was playing. According to Corino, he carefully watched the threesome on the adjoining tee hit their drives. Unaware that Duffy's playing partners allowed Duffy to take a mulligan, Corino took dead aim on his iron shot to the green, only to be struck by Duffy's mulligan. In light of Schick, Duffy sued the threesome claiming that all three engaged in reckless conduct by allowing a mulligan in the first instance, and then failing to yell fore as Duffy's shot sliced toward Corino. As the matter unfolded, Duffy's playing partners turned against him, claiming that Duffy struck the mulligan that injured plaintiff, and that they had no duty to yell fore. The trial court agreed. Reading the Rules of Golf strictly, the court ruled that only the "player" who strikes the errant shot has the duty to yell fore. Beyond that, the court suggested that only a jury could make a determination of whether Duffy's failure to yell fore constituted reckless conduct. Presumably, the court felt that, unlike Schick, Corino was not directly in the "line of fire," and thus presented a much closer question of fact. While it's true that the Rules of Golf impose upon the player the duty to yell fore when an errant shot is struck, the rules also mandate that the ball must be played as it lies. If Duffy had followed the rules, Corino would have played on without injury. And that is the irony of New Jersey's golf jurisprudence.   Previous Next Contact

News A Missed Opportunity by Defense Counsel in PA May 29, 2020 < Back Share to: In Shiflet v. Lehigh Valley Health Network, Inc., the Pennsylvania Supreme Court affirmed the trial court’s $2,391,620 verdict in favor of the plaintiff under the “general-verdict rule,” which states that “when a jury returns a general verdict involving two or more issues, and the verdict is supported as to at least one issue, the verdict will not be reversed on appeal.” The plaintiff in Shiflett underwent knee surgery at Lehigh Valley Hospital. While recovering from her surgery in the hospital, she fell out of her hospital bed and fractured her left tibia, which went undiagnosed by the nursing staff. She was then transferred to a rehabilitation unit. While undergoing rehabilitation therapy, the tibia fracture displaced. She then underwent two additional surgeries and suffered permanent left leg injuries. The plaintiff subsequently sued the hospital for negligence. At the close of trial, the jury awarded the plaintiff $2,391,620 in damages. There was no breakdown of damages on the verdict sheet, and counsel for the hospital did not object or seek apportionment of the verdict amount. The Superior Court ruled that one of the claims upon which the plaintiff prevailed at trial was time-barred and should not have been submitted to the jury. Finding that some portion of the jury’s damage award may have been based upon the time-barred claim, the intermediate appellate court remanded the case for a new trial on damages. After its review, the Pennsylvania Supreme Court concluded the Superior Court erred in this regard, as pursuant to the “general-verdict rule” adopted by Halper v. Jewish Family & Children’s Services, 963 A.2d 1282 (Pa. 2009), the Hospital waived any entitlement to a new trial on damages when it failed to request a special interrogatory on the verdict sheet that would have permitted the jury to allocate the damages awarded on each claim Shiflett demonstrates the need for counsel to be aware of the timeliness of requesting an allocation of damages. Thanks to John Lang for his contribution to this post. Please email Heather Aquino with any questions. Previous Next Contact

News City Challenges Rejection of 9/11 Settlement April 15, 2010 < Back Share to: The 9/11 tragedy has generated a cottage industry of litigation about the definition of the term "occurrence" in a property policy, the obligations of a long term tenant to rebuild property destroyed by terrorists and the liability of owners of property and their contractors to workers who claim to have been injured in the aftermath of the 9/11 attack. After years of litigation, the City of New York and its contractors announced a global settlement with thousands of plaintiffs who seek compensation for respiratory injuries allegedly caused by the effects of 9/11. The settlement fund could reach as much as $657,000,000 if accepted by over 98% of the claimants. Judge Alvin Hellerstein rejected the proposed settlement as inadequate and prohibited the parties from implementing several key provisions in the agreement. The City of New York disputes the court's authority to approve the settlement or reject any provision in the agreement. The City has filed a notice of appeal with the Second Circuit in an effort to salvage the settlement as negotiated between the parties. If you have any questions about this post, please email Paul Clark at pclark@wcmlaw.com City of New York Appeal Pdf Previous Next Contact

News Commercial Landlord Protected by Indemnification and Risk Transfer Clause in Lease (NY) March 25, 2022 < Back Share to: New York General Obligations Law Section 5-321 provides that every agreement in connection with the lease of real property exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor in the operation or maintenance of the real property shall be deemed void as against public policy. In other words, a tenant cannot agree to indemnify his or her landlord for the landlord’s own negligence in a lease in New York. There is an exception, however, allowing for the indemnification of a lessor’s negligence where the lease involves sophisticated commercial parties, negotiating at arm’s length, who agree to allocate the risk of liability between themselves, typically through insurance. The Supreme Court of New York, Bronx County, recently addressed these issues in a case involving a commercial tenant. In Titumir v. Barker Ave Estates LLC, plaintiff leased the first floor of the subject premises and sold discount hardware supplies. The lease agreement provided that plaintiff was responsible to maintain and repair the premises, fixtures, and appurtenances. In July 2017, water began to leak from the apartments above the store and the ceiling eventually collapsed, causing damage to the store, plaintiff’s goods, and an alleged loss of business. Plaintiff sued the landlord, claiming that it failed to comply with its nondelegable duty to maintain the premises and make repairs. The court disagreed and granted defendant’s motion for summary judgment based on the lease provision requiring plaintiff to maintain and repair the premises. The court held that this provision exempts defendants from any liability arising from the water leak and that since this claim involved a commercial tenancy, the lease falls within the exception to General Obligations Law Section 5-321. The court also noted that a rider to the lease required plaintiff to purchase insurance for property damage, making it clear that the parties intended to allocate risk to a third party, the insurance company. The Titumir case reiterates the law in New York that landlords and tenants are free to allocate the risks associated with commercial tenancy, including passing the risk on to the parties’ insurers. Indemnification and insurance language in such leases is important and usually dictates who bears the exposure for property damage or premises liability in the commercial setting. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Chutes and Falling Ladders: Superior Court Delves into the Appropriate Venue for a Strict Products Liability Case (PA) November 13, 2020 < Back Share to: In Kornfeind v. New Werner Holdings Co., Inc. William Kornfeind (“plaintiff”) was standing on a ladder when it slid downward, causing plaintiff to fall and sustain severe injuries. Plaintiff brought claims of strict products liability and negligence against New Werner, the designer of the ladder. Defendant filed a motion for summary judgment after discovery concluded. New Werner claimed that Pennsylvania was an improper venue because plaintiff was injured in Illinois. The trial court denied the motion and defendant appealed. The Superior Court affirmed the trial court’s ruling, noting that while plaintiff is a resident of Illinois, purchased the ladder in Illinois, and was injured in Illinois, his claims surround the design of the ladder, which allegedly occurred in Pennsylvania. Thus, venue was proper in Pennsylvania for this matter. This case reveals that when defending a strict products liability case we should look to the essence of plaintiff’s claims to determine the appropriate venue for an action. Thanks to Nicholas Wight for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News NY App. Div. Finds Maintenance Records Key in Establishing Constructive Notice May 27, 2010 < Back Share to: In Zambri v. Madison Sq. Garden, the Second Department upheld the lower court’s denial of defendant’s motion for summary judgment, stating that the defendant failed to establish that it did not have constructive notice of the allegedly hazardous condition that caused plaintiff to fall. In Zambri, plaintiff slipped and fell on beer that had been spilled on the floor at Madison Square Garden. Although plaintiff didn’t see the beer before her fall, after landing on the ground, her pants were wet and smelled like beer. Despite defendant’s event supervisor’s testimony that he inspected the floor over the course of the night and did not recall seeing any beer on the ground, the documentary evidence revealed that the area had been mopped on two separate occasions, well after plaintiff’s fall. Since the defendant did not offer any evidence as to when the area was last cleaned prior to plaintiff’s fall, the Second Department held that the defendant failed to establish that it did not have constructive notice of the condition prior to plaintiff’s fall. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04370.htm Previous Next Contact

News Plaintiffs May Name Insurance Carriers as Defendants in UIM Cases (PA) October 24, 2013 < Back Share to: The Pennsylvania Superior Court recently held in Stepanovich v. McGraw that co-defendants in underinsured motorist cases are not prejudiced under the Rules of Civil Procedure where the plaintiff names his own insurance carrier as a defendant. In Stepanovich, the underlying action arose out of motor vehicle accident wherein defendant McGraw allegedly ran a red light and struck the plaintiff while he was crossing the street. In addition to suing McGraw, the plaintiff also named State Farm as a defendant for failure to pay underinsured motorist benefits. Despite the plaintiff’s foresight, however, the trial court sustained McGraw’s preliminary objections to the suit and bifurcated the claims so as to insulate the individual defendant from inadmissible evidence of (inadequate) insurance under Pa.R.C.P. 411. Still, the trial court allowed State Farm to participate in the case on the condition that it did not allude to insurance coverage or payments. Ultimately, an Allegheny County jury returned a complete defense verdict in McGraw’s favor and denied the plaintiff recovery for his injuries. Dissatisfied with the outcome below, the plaintiff appealed to the Pennsylvania Superior Court where he argued that the trial court unnecessarily confused the jury by refusing to identify State Farm as a defendant in the case. Moreover, the plaintiff contended that he was unfairly prejudiced by having both defendants contest liability while only one remained available on the verdict sheet. Interestingly, the Superior Court agreed with the plaintiff’s articulation of the law but nonetheless denied his request for a new trial. Specifically, the Superior Court explained that while Pa.R.C.P. 411 generally prohibits the introduction of liability insurance into evidence because it invites the jury to overvalue damages, allusions to underinsured motorist coverage are unlikely to prejudice the defendant where such benefits do not by their nature indemnify third-party tortfeasors. Nevertheless, the plaintiff in Stepanovich failed to demonstrate actual prejudice insofar as State Farm’s absence from the verdict sheet did not bear directly on the question of McGraw’s negligence. As a result, the plaintiff could not demonstrate reversible error and the trial verdict was affirmed in favor of the defense. Given the nature of the Superior Court’s decision, Stepanovich serves as a reminder that the prohibition against evidence of insurance is not absolute, but rather depends on the specific relationship between the type of insurance and the defendants in the case. Thank to law clerk Adam Gomez for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Defendants’ Conflicting Accounts Held Fatal To Their Summary Judgment Motion (NY) December 2, 2022 < Back Share to: When moving for summary judgment in a New York negligence action, the moving defendant has the burden of establishing, prima facie, that he or she was not at fault in the happening of accident. Evidence of fault on the part of the defendant can defeat the motion and can come from the defendant’s own proofs. For example, in Charles v. American Dream Coaches, a vehicle operated by plaintiff collided with a bus owned by one of the defendants. Plaintiff pleaded guilty to the traffic offense of driving or operating a motor vehicle in an unsafe manner but still sued the bus owner and driver. The Supreme Court granted defendants motion for summary judgment and plaintiff appealed. The Appellate Division, Second Department reversed, citing the general rule regarding a defendant’s summary judgment burden and finding that defendants had “failed to establish, prima facie, that they were free from fault in the happening of the accident.” In so holding, the court observed that the defendants had submitted conflicting accounts of how the accident happened and failed to eliminate triable issues of fact as to their fault. The Court also held that the fact that the plaintiff pleaded guilty to a traffic offense did not conclusively establish that she was negligent and that a person who pleads guilty to a traffic offense is permitted to explain the reasons for the plea to a jury. The Charles case serves as a reminder that summary judgment is not appropriate where evidence of a defendant’s fault exists, and that care should be taken to avoid submitting conflicting evidence in connection with such a motion. Thank you to Rebecca Pasternak for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact