News NYC Subways and Air Conditioning June 14, 2012 < Back Share to: Every New Yorker who uses the subway on a regular basis has had the unpleasant experience of riding a train on hot day with no air conditioning. In Mahautiere v. NYC Transit Authority, a case of first impression in the Supreme Court, Queens County, the plaintiff fainted in a subway cart and fractured her ankle. The plaintiff commenced a lawsuit against the NYC Transit authority, alleging that the Transit Authority was negligent in failing to "provide a reasonably expected level of air conditioning" while the train was stopped between two stations. The Transit Authority moved for summary judgment, arguing that they did not owe the plaintiff a duty to provide air conditioning, yet did so and it was working properly. The court granted the Transit Authority's motion, holding that even if the agency owed the plaintiff a duty to provide a "reasonably expected level of air conditioning" and breached it, plaintiff did not provide sufficient evidence to support her contention that insufficient air conditioning caused her to fall and fracture her ankle. This case was an opportunity for the court to address two issues that affect millions of New Yorkers on a daily basis. First, does the Transit Authority have a duty to provide a "reasonably expected level of air conditioning" in the subway? Second, what is a "reasonably expected level of air conditioning?" It will be very interesting to see what the Second Department does when this case comes up on appeal. Special thanks to Ed Lomena for his contributions to this post. For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .     Previous Next Contact

News NY App. Div. Upholds Summary Judgment to Insurer in Intentional Crash February 3, 2011 < Back Share to: The case of Commercial Insurance Company of Newark v. Popadich involved a rather sensational incident which took place in Manhattan several years ago. In February 2002, on two separate occasions, Ronald Popadish drove into Manhattan and ran down 27 pedestrians. One of Popadich’s, victims, Chetan Mangat, then brought a personal injury action against Popadich in Supreme Court, Kings County for injuries he suffered after being struck by Popadich’s vehicle. Popadich’s insurer, Commercial Insurance Company of Newark provided Popadich with counsel to defend him in that action under a reservation of rights. Although, after his arrest, Popadich had confessed that he drove into Manhattan for the sole purpose of running over as many people as possible, Mangat was awarded summary judgment in the Kings County action on the basis that Popadich's negligence caused Mangat's injuries. Commercial Insurance then brought a declaratory judgment action in Supreme Court, New York County against Popadich, Mangat and other victims of Popadich’s rampage. In the New York County action, Commercial sought a declaration that it owed Popadich no duty to defend or indemnify arguing that Popadich’s actions were intentional and, as such, the resulting injuries were not covered under the policy. The New York County court rejected the proposition that Commercial Insurance was estopped from bringing the declaratory judgment action due to its appointment of counsel in the Kings County action, noting its reservation of rights and the fact that the issue of intentional acts was not argued in that case. Citing Popadich’s signed and transcribed confession, the New York County granted summary judgment to Commercial Insurance on the grounds that Popadich’s actions were intentional. This decision was upheld on appeal to the Appellate Division. Thanks to Katusia Lundi for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08858.htm Previous Next Contact

News NY Labor Law - Strict Liability - Strict Interpretation February 17, 2017 < Back Share to: New York Labor Law actions involve issues of strict liability -- not negligence, a significant distinction. This distinction figured heavily in the court decision of Bridgemohan v. Cornell Group, Inc. The case arose out of a fall from an unsecured ladder that was not equipped with rubber feet. The plaintiff had been working at a multi-family home patching cracks in the wall of a garage. The ladder slipped as he ascended it causing him to fall onto concrete ground. The plaintiff moved for summary judgment under Labor Law §240(1), and the defendants made two arguments in opposition. First, defendants argued that plaintiff was the sole proximate cause of his injuries. Second, defendants argued that plaintiff was not a protected class under the statute since he had not been directly hired by them to do the work. As to the first argument, there was speculative testimony from the defendant property owner that the plaintiff had attempted to do a jump turn while on the ladder, which caused the fall. The judges looked dubiously upon this testimony given the position and vantage point of the witness. Ultimately, this testimony proved unavailing in any event. Even assuming plaintiff was negligent in doing a jump turn, this would not absolve the defendants from strict liability resulting from the failure to provide proper equipment, a statutory protection for the work he was doing. Elicited testimony which attempts to place fault on the plaintiff is irrelevant if a violation of a statute in any way caused the accident. Any negligence on his part would be insufficient to constitute an unforeseeable or extraordinary act that would be a superseding cause of the accident. The court likewise was not persuaded that plaintiff was a volunteer and not a worker. While the defendants had in fact hired another person to do the job, that person had, in turn, hired the plaintiff to assist. The defendants paid the person they hired who paid the plaintiff. The plaintiff testified that he expected to be paid, and the contractor who asked plaintiff to assist with the work testified that he had always planned to, and did pay plaintiff. Thus, plaintiff was part of the protected class of workers. Thanks to Christopher Goia for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News Insurance Broker’s Fiduciary Duty a “Fact-Specific” Question of Law for the Court October 3, 2017 < Back Share to: One particularly thorny area of the law with respect to insurance providers and brokers is the scope and breadth of any attendant fiduciary duties owed to an insured. In Ring v Meeker Sharkey Associates LLC, the New Jersey Superior Court Appellate Division recently upheld the trial court’s decision that the Plaintiffs’ homeowners’ insurance brokers did not owe a duty to advise the insureds of vulnerability in their coverage and a need for excess flood insurance. Ring is another case developing New Jersey’s insurance law following Hurricane Sandy. The Plaintiffs owned two beachfront homes along the Jersey Shore. For more than a decade, they secured both homeowners and flood insurance for the homes through Defendant Meeker Sharkey. In 2008, Plaintiffs moved their insurance accounts to Willis of New Jersey. In 2010, Plaintiffs’ moved their homeowners’ coverage back to Meeker Sharkey, but continued to secure flood insurance through Willis. In 2012, Hurricane Sandy ravaged Plaintiffs’ properties, causing catastrophic – and largely uncovered – losses to both. The crux of the ensuing litigation was Plaintiffs argument that as part of their transfer of homeowners’ insurance back to Meeker Sharkey in 2010, the firm undertook a review of Plaintiffs’ insurance coverage generally, and therefore owed a duty to alert Plaintiffs to their gap in flood insurance coverage, as well as a duty to affirmatively advise them to obtain excess floor insurance. The Ring Court decision underscores and reiterates than in New Jersey, the determination of whether a duty exists is a question of law to be determined by the courts, while also noting that there is no bright-line rule and that the inquiry is intensely fact-specific. Here, the Court found that the homeowners’ insurance broker did not have a duty to provide advice about flood insurance where the Plaintiffs engaged a separate entity, Willis, to secure its flood insurance. The fact that Meeker Sharkey knew or should have known of the gap in coverage did not create a duty to Plaintiffs under these circumstances. Ultimately, the Ring court was not called to determine whether Willis had breached the duty it owed. The question of whether or not that duty was breached is one of fact, for a jury. Thanks to Vivian Turetsky for her contribution to this post. Previous Next Contact

News WCM Obtains "No Cause" in NJ Arbitration. July 14, 2016 < Back Share to: Partner, Robert Cosgrove and associate, Rachel Freedman secured a “no cause for action” ruling at arbitration in Gloucester County, New Jersey in a slip-and-fall case involving stormwater runoff at a residential home. In Oya Garonski, et al. v. Robert Bockius, et al., the plaintiff fractured her wrist after allegedly slipping and falling on a large accumulation of slippery stormwater that was draining across the defendant-homeowners’ sidewalk after days of significant rainstorms. Per Judge Robert Morgan’s law of the case, under New Jersey water runoff law, the plaintiffs could not recover against the defendants if draining stormwater alone caused her fall, due to the fact that there was no evidence that the defendants took any action to change the delivery of stormwater to the sidewalk. The arbitration panel held that there was no evidence that the defendants had actual or constructive notice that there was dirt, silt, or any other slipper substances hidden under the flowing stormwater that would have caused the plaintiff’s fall, and thus, 0% liability was assessed to the defendants. For more information about this post please e-mail Bob Cosgrove . Previous Next Contact

News Slip Slidin’ Away – Student’s Fracture Occurred too Quickly for School to React (NY) July 28, 2016 < Back Share to: In Elbadwi v Saugerties Cent. Sch. Dist, the Third Department recently discussed the standard of care that schools must exercise to prevent children from being injured by snow and ice. Plaintiff, a 10-year-old student attending Cahill Elementary, she slipped and fell on any icy surface in December 2012 on the school’s playground during recess. On the day of plaintiff’s injury, the school’s lunch monitor expressly told all students, including plaintiff, that they had to remain in a specific area of the blacktop during recess. According to the lunch monitor, the students were told that they could not walk onto the actual playground, as its rubber surface was icy and all the equipment was covered with snow. Less than a minute after recess began, the plaintiff claimed that, in order to avoid colliding with another classmate, she jumped onto a slide on the playground, slipped, and fractured her upper left arm. The infant plaintiff and her mother brought suit against the Cahill Elementary school district for 1) failing to maintain its property in a reasonably safe condition and 2), negligently supervising the infant plaintiff. After completing discovery, the defendant moved for summary judgment dismissing plaintiff’s complaint. The Supreme Court granted defendant’s motion as to the negligent supervision claim, but denied the portion of defendant’s motion seeking to dismiss the premises liability claim. According to the Supreme Court, there were questions of fact that precluded summary judgment regarding whether the defendant maintained the playground in a reasonably safe condition. The parties cross-appealed. The Appellate Division, Third Department, held that the complaint should have been dismissed in its entirety. In terms of plaintiff’s negligent supervision claim, the Court noted that while schools have a duty to adequately supervise children in their care, they are not “insurers of their students’ safety.” Instead, schools are charged with the same degree of care that would be exercised by a reasonably prudent parent in similar circumstances, and when a child’s accident occurs in such a short period of time that “even the most intense supervision could not have prevented it, lack of supervision is not the proximate [cause] of the injury,” and summary judgment is warranted. In the case at bar, the defendant’s expert, an experienced school administrator, argued that the ratio of students-to-monitors was sufficient to provide proper supervision and that the lunch monitor provided reasonable supervision to the plaintiff on the day in question. Even more important to the Court was the infant plaintiff’s own testimony. According to the infant plaintiff, as soon as the doors opened for recess, she and two friends ran toward the playground. When her friends turned to play kickball on the blacktop, she kept running toward the playground. Her friends called out her name, she turned, and when she “wasn’t paying attention” nearly collided with another classmate. To avoid the classmate, she swerved toward the playground equipment only to realize that she was about to trip over the slide. On instinct, she jumped up to avoid tripping, landed on the icy slide, slipped, and broke her arm. Because the plaintiff confirmed that “no amount of supervision” could have prevented her injury in such a short period, the Third Department affirmed the Supreme Court’s dismissal of plaintiff’s negligent supervision claim. With regards to plaintiff’s premises liability claim, the Third Department reversed the Supreme Court. According to the defendants’ expert, because the plaintiff was expressly instructed not to use the playground or playground equipment, the school had no duty to clear that area of snow. Further, it would have been “nearly impossible” to remove all the snow the rubberized playground surface. In response, the plaintiff failed to provide their own expert or submit any evidence sufficient to raise a question of fact as to the defendant’s obligations to remove snow from the playground. Instead, the plaintiff only provided a bare assertion that the school was required to remove snow and ice from the playground. The Court concluded that, even if plaintiff submitted sufficient evidence to raise a question of fact, the plaintiff’s injury were likely the result of her own inattentiveness, not the condition of the slide. Please note the importance of the appropriate experts in the defendants prevailing on both causes of action. Without them, this case would have found itself before a potentially sympathetic jury. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Eastern District of Pennsylvania Grants Summary Judgment, Finding Hills and Ridges Doctrine Shields Landowner from Liability (PA) March 20, 2020 < Back Share to: In David v. Walmart Stores, on March 2, 2018, the plaintiff was shopping at a Walmart store and fell, at approximately 3:00 pm, while walking back to her car. The plaintiff attributed her fall to the snowy and icy conditions in the parking lot. By way of brief background, on March 2, there was a Winter Weather Advisory for light rain / snow from 9:00 am to 12:00 pm and snow / heavy snow from 12:00 pm to 4:00 pm. The plaintiff subsequently brought a negligence action against Walmart for its alleged failure to properly maintain the parking lot. Walmart thereafter moved for summary judgment. In coming to its decision, whether to grant summary judgment, the Court looked to the Hills and Ridges Doctrine, which protects landowners from liability where they have not allowed snow and/or ice to unreasonably accumulate. Pursuant to Pennsylvania’s Hills and Ridges Doctrine, “a landowner has no duty to correct or take reasonable measures with regard to storm-created snowy or icy conditions until a reasonable time after the storm has ceased.” Collins v. Philadelphia Suburban Dev. Corp., 179 A.3d 69, 76 (Pa. Super. Ct. 2018) (emphasis added). All parties agreed that there were slippery conditions when the plaintiff fell. However, the Court noted that when the plaintiff slipped, it was actively snowing. Therefore, under Pennsylvania’s Hills and Ridges Doctrine, Walmart was not required to ensure its parking lot was snow and/or ice free until after the winter weather event had concluded. As such, the Court granted Walmart’s Motion for Summary Judgment. This case demonstrates that mere allegations of snowy and/or icy conditions alone do not create automatic liability. Rather, in determining liability, Pennsylvania Courts will take into account whether it was snowing at the time of a plaintiff’s fall. This doctrine is extremely valuable to landowners given Pennsylvania’s propensity for harsh winters. Thanks to Rachel Thompson for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Can An Expert Conclude that Excessive Floor Cleaning Create a Dangerous Condition? (NJ) October 31, 2016 < Back Share to: In Elaine Anderocci v. Coach Inc., the Appellate Division for the Superior Court of New Jersey discussed whether plaintiff’s expert report was admissible to show defendant’s floor cleaning practices created a dangerous condition. Plaintiff was reaching for a handbag on a shelf in a Coach store when she slipped and fell fracturing her shoulder. Plaintiff argued that “[t]he very slippery floor was like a sheet of glass.” Plaintiff obtained a report from a wood flooring expert who described the wood flooring as "quartersawn walnut planks" installed in a herringbone pattern and milled with stress relief. Although the expert never examined the store’s floor, he concluded that the slippery condition of the floor was attributable to the use of excessive water in cleaning it. The expert based his conclusions on the record, which indicated it was Coach, Inc.’s practice to have the floor “damp mopped” three times per week. According to the plaintiff’s expert, if too much water is used to mop this type of flooring, the water can cause the surface to cup or crown—thereby creating a slippery and dangerous condition. The plaintiff’s expert cited to the National Wood Flooring Association (“NWFA”) maintenance guidelines, which state that floor crowning can be caused by “moisture imbalance” due to excessive water used when cleaning a wood floor. The court granted summary judgment to the defendant concluding that the plaintiff’s expert report comprised an inadmissible net opinion. He did not inspect the flooring, and accepted plaintiff’s deposition testimony at face value. There was no evidence in the record that defendant’s floor was “cupped” or “crowned.” Notably, the expert report did not establish why Coach, Inc.’s practice of damp-mopping the floor three times per week was too frequent, or conversely, too infrequent. Accordingly, the conclusions were too speculative to be admissible and were not sufficiently grounded upon facts in the record. Defense counsel should be cognizant that just because an expert is well versed in a specific area, if there is no objective evidence tying the conclusion to the specific facts of the case, it may be rejected by the court as an inadmissible net opinion. Thanks to Ken Eng for his contribution to this post.       Previous Next Contact

Caroline G. Nelson Associate Pennsylvania cnelson@wcmlaw.com 267 279 9104 Professional Experience Caroline assists with a variety of coverage matters. Her works includes reviewing insurance policies and contracts to determine an insurer’s obligations related to defense and indemnification. Caroline also assists with the litigation of general liability actions for various types of claims, by performing legal research and drafting litigation documents. Caroline joined WCM as a summer associate in May 2024 and worked with the firm, as she completed her final year of law school. During law school, she served as a Managing Editor of Student Works for the Villanova Environmental Law Journal. Prior to joining WCM, Caroline served as a judicial intern for the United States Court of Appeals for the Third Circuit. Honors and Distinctions Villanova Law Dean’s Merit Scholar Phi Beta Kappa News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Villanova Charles Widger School of Law B.A., George Washington University Bar Admissions New Jersey New York Pennsylvania

News Sea Change in Classification of Employees vs. Independent Contractors? (CA) October 15, 2019 < Back Share to: On September 19, 2019, California governor Gavin Newsome signed a bill into law essentially reclassifying independent contractors as employees. Whereas the past classification turned on the degree of control an employer exerted on a worker, the new California test looks to whether the work performed is of the same kind as the main business of the employer—i.e., package delivery for a delivery company. We have posted on this issue in the past, as it has pertained to a claim against Uber in Pennsylvania. In New York, Governor Cuomo spoke approvingly about passing a similar piece of legislation. A bill to reclassify independent contractors was introduced in the New York State Senate earlier this June, and a coalition including the New York Taxi Workers Alliance, the New York Nail Salon Workers Association, the Legal Aid Society, and 32BJ SEIU is currently pushing for legislation Gov. Newsome just signed in California. These statutory reclassifications of independent contractors are on paper limited to traditional employee benefits, such as overtime and minimum wage protections, workers compensation and unemployment insurance, and do not extend to tort claims, thus leaving in place the control-based test for determining whether a worker is an employee and an employer is in turn vicariously liable. In New York, the test for determining a worker’s classification for purposes of worker’s compensation is similar to that applied in a tort action: both turn on control exerted upon the worker by the employer. Although similar, the tests are not identical, and it can happen that the same worker may simultaneously be an employee for purposes of workers compensation and an independent contractor in a tort action. This apparent conflict is actually a peaceable one, and New York Courts have routinely held that a finding of “employee” for workers compensation purposes does not disturb a finding of “independent contractor” in a tort action. As a practical matter, employers might be less willing to grant a worker the same flexibility enjoyed by a contractor in matters like setting his own hours if the employer were on the hook for the various costs associated with a traditional employee. That increased control over the worker could have the result of triggering employee status within the tort law realm. This new reclassification something to keep an eye on, within and without New York State. Thanks to Jon O'Brien for his contribution to this post. Please email Brian Gibbons with any questions.     Previous Next Contact

News The New Normal (NY) August 21, 2020 < Back Share to: The New York Supreme Court Commercial Division has enacted a new rule that allows attorneys to request permission to appear remotely before commercial judges based on a showing of a good cause. The new rule is a clear shift from the status quo of courts operating on an ad hoc basis filled with administrative court adjournments and trial delays. However, what separates the Commercial Division's new rules from most other courts is that it provides attorneys with more autonomy to facilitate the progress of their client’s cases on the trial calendar. It is now incumbent on courts to allow a transition to a more digital platform by allowing remote participation and paperless submissions. We can safely assume that we are in the new normal, and the idea of returning back to pre-covid days any time soon is just a pipe dream that only delays bureaucratic operations even more than they were before the pandemic. Attorneys and court staff continue to acclimate themselves to the new changes and adapt to attending hearings and conferences remotely. Thanks to James Papadakis for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News WCM Wins On Toxic Metals Exclusion in NJ Coverage Dispute. June 7, 2016 < Back Share to: Partner Bob Cosgrove and associate Colleen Hayes were awarded summary judgment dismissing all claims in a New Jersey coverage action arising out of a contaminated soil dispute. In the case of Nautilus Ins. Co. v. Nittolo, et al., the underlying plaintiff allegedly suffered close to $1,000,000 in damages caused by contaminated soil procured and delivered by Nautilus’s insured. Specifically, the soil was allegedly contaminated with various toxic metals, which resulted in damage to the underlying plaintiff’s property. At the close of discovery, we moved for summary judgment. We argued based on, inter alia, the New Jersey Supreme Court’s seminal case Weedo v. Stone-E-Brick, Inc., as well as the policy’s Toxic Metals Exclusion, there was no coverage provided under the policy for the underlying plaintiff’s damages. The trial court agreed and held there was no coverage provided under the policy for any party. For more information about this post please e-mail Bob Cosgrove . Previous Next Contact