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News A Wall Is Really A Window: "Routine Maintenance" Re-Visited September 3, 2009 < Back Share to: Labor Law § 240(1), also known as the Scaffold Law, places absolute liability on owners and general contractors to provide a safe work environment to prevent accidents that flow from the risk of performing work from elevated heights. Section 240(1) specifically enumerates activities under its protection, which includes commercial window washing, but not routine cleaning. But the courts have long struggled with the concept of what constitutes “routine maintenance.” In Declercq v. WWP Off., LLC, plaintiff was washing the walls and window ledges inside a subway station. The job entailed using a ladder to apply a cleanser, letting it soak, then again using a ladder to hose down the area. The plaintiff was hosing down the area when the ladder kicked out from underneath him, causing him to fall 20 feet and sustain injuries. The plaintiff argued that because cleaning is specifically enumerated as a protected activity under Labor Law § 240(1), and he was not provided any safety device to prevent him from falling, the defendant building owner is liable under § 240(1). The defendant argued that they are not liable under § 240(1) because the plaintiff was involved in routine cleaning. The cleaning was routine because the plaintiff was cleaning the walls and window ledges, and not the windows. The court disagreed and held that the plaintiff was not performing routine cleaning because he was not cleaning residential or household buildings. And, cleaning under § 240(1) is not limited to cleaning windows. Section 240(1) protects workers while cleaning when it involves an elevated height without the proper safety equipment, which the court found is exactly what happened in this case. Declercq makes plain that where the worker requires a ladder (or works from a height), the marked judicial trend is to find 240(1) applicable even if the task is as mundane as washing walls. Thanks to Anne Mulcahy for her contribution to this post. For more information, please email Dennis Wade at dwade@wcmlaw.com . Previous Next Contact

News PA-No Extrinsic Evidence For You October 12, 2018 < Back Share to: In Lupa v. Loan City, LLC, the Third Circuit Court of Appeals confirmed the standard upon which an insurer’s defense obligations are triggered under Pennsylvania law. In Lupa, the insured sought coverage from its insurer for various claims asserted against it. In response to the insured’s request for defense, the insurer denied the insured’s claim, contending the complaint against the insured did not trigger coverage under the policy. On appeal, the insured contended that the four corners rule should not be applied to determine coverage under a policy. The Court of Appeals disagreed. The court held that, under Pennsylvania law, an insurer’s duty to defend could only be triggered by allegations within the four corners of the complaint. The court continued that there were no exceptions to this rule, which would require an insurer to rely on facts introduced outside of the complaint, i.e. extrinsic evidence. Accordingly, this case confirms that courts applying Pennsylvania law will apply the four corners test to determine whether an insurer’s obligation to defend has been triggered. Thanks to Colleen Hayes for her contribution to this post.   Previous Next Contact

News Cell Phone Update: Potential Liability for Texting a Driver (NJ) August 27, 2013 < Back Share to: What did we do before texting was invented? Although some people believe that it is quaint and outdated, we actually spoke to each other. Sometimes we talked by telephone or in person. Now, texting is a preferred method of communication with its own grammar, spelling and acronyms. Like any new techology, texting has a dark side. At its worst, it can distract drivers from the hazards of the road, sometime with fatal consequences. We know that a "texting driver" may have both criminal and civil liability if an accident ensues but what about someone who texts a driver who then causes a serious accident? Can the third party who sent the driver a text be liable as well? In Kubert v. Best, Kyle Best, age 18, was driving his pick-up up truck when he apparently received a text message from his 17 year old friend. Momentarily distracted by the text, he crossed the double yellow line and struck a couple riding a motorcycle, causing them both serious personal inuries. The couple sued Kyle as well as the friend who sent him the text. The lower court ruled that the texting friend had no duty to refrain from sending the text and the plaintiffs' appealed. The Appellate Division affirmed the dismissal of plaintiffs' complaint but held that a person may be liable for sending a text message to the driver of a motor vehicle only if he knows or has reason to know that the recipient will read the text while driving. In this case, plaintiffs' proof fell short of the mark so the dismissal was affirmed. But the door is now wide open to impose liability for an accident on a person not physically present in the motor vehicle if the sender of a text is aware that the receipent may receive and review the text while driving. If you have any questions, please email -- or text-- Paul at pclark@wcmlaw.com   Previous Next Contact

News New York Courts Redefine Meaning Of Specific Standards In Labor Law Claims August 19, 2022 < Back Share to: Labor Law 241(6) imposes a non-delegable duty on owners and contractors to “provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of the Department of Labor.” The first part of the statute reiterates the common law-standards of care. The second part of the statute creates a nondelegable duty with respect to certain regulations. The question the courts have grappled with is whether this sets forth a “specific standard of conduct” or a general safety standard. In Toussaint v. Port Authority of N.Y. & N.J., plaintiff was injured when he was struck by a power buggy. The operating engineer of the power buggy was not assigned by his employer to operate the device. Plaintiff alleged a violation of NYCRR23-9.9(a) which states that “no person other than trained and competent operator designated by the employer shall operate a power buggy.” Since the term “designated person” was specifically defined in NYCRR23-9.9(a) it was deemed a proper predicate for a Labor Law 241(6) claim. The Court previously refined the standard of liability under Section 241(6) by requiring that the rule or regulation alleged to have been breached be a specific, positive command, in Ross v. Curtis-Palmer Hydro-Elec. Co. However, in Toussaint the Court has reframed the standard and held that the term “designated” does not transform NYCRR23-9.9(a) into a specific standard. This will have a specific impact on New York Labor Law practice as the term “designated” has now been reframed to not be considered a specific standard. Thanks to Jennifer Tuz for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Seinfeld Suit Over Hidden Vegetables, Not That There's Anything Wrong With That January 8, 2008 < Back Share to: Former publisher of "Eating Well" magazine, Missy Chase Lapine commenced a lawsuit against Jerry Seinfeld and his wife Jessica Seinfeld, accusing Mrs. Seinfeld of copying her children's diet cookbook and Mr. Seinfeld of defaming her on Late Night With David Letterman and E! News. http://www.nytimes.com/reuters/arts/entertainment-seinfeld-lawsuit.html?_r=1&oref=slogin Previous Next Contact

News Is Getting The Right Panel Key to Appeal In NY's First Department ? May 17, 2012 < Back Share to: In New York's Appellate Division, First Department, forget precedent, the key is getting the right Court panel. In Maniscalco v. New York City Transit Auth., the plaintiff, a pedestrian, was struck by the defendant's side-view mirror, as she crossed the street within the crosswalk with the light in her favor. The plaintiff moved for and was granted summary judgment by the Supreme Court. On appeal, the defendant did not challenge the Supreme Court's finding that he was negligent and that his negligent was the substantial cause of the accident. Rather, he contended that questions of fact existed as to the plaintiff's comparative negligence, precluding summary judgment. In 1993, the Court of Appeals, in Thoma v. Ronai, held that a plaintiff is not entitled to summary judgment where there is an issue of fact as to comparative negligence. While this should have resolved the issue once and for all, it did not. In 2010, a panel of judges on the First Department declined to follow it. But just two years later, a different panel of the same court followed Thoma. After a long look at the mixed precedent on the matter, the Maniscalco Court reversed the Supreme Court, denied plaintiff summary judgment, and decided to follow Thoma. It reasoned that the point of Thoma and its progeny is that, where there is evidence that both the defendant and plaintiff were negligent and that each one's negligence may have been a substantial factor in causing the injury, whether one party's negligence was a substantial factor in causing the injury should not be determined in isolation. Rather, each party’s liability should be considered and determined simultaneously with the material, and overlapping, issue of whether the other party was also culpable. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03548.htm Thank you for Gabe Darwick for this post. Previous Next Contact

News Independent Medical Examinations Must Be Exhaustive, Says NY Supreme Court, to Refute 'Serious Injury' Claims May 31, 2024 < Back Share to: Recently, in Collado v. Chiarello , 208 N.Y.S.3d 921, the Supreme Court in Kings County decided on defendants’ motion for summary judgment in a case where plaintiff alleged personal injuries resulting from a motor vehicle collision caused by negligent operation of both defendants’ vehicles. Plaintiff, an injured passenger, alleged in her bill of particulars that she sustained post-concussion syndrome, headache syndrome, and injuries to her left shoulder, cervical, thoracic and lumbar spine. In moving for summary judgment, defendants argued that plaintiff did not suffer a “serious injury” as defined in N.Y. Insurance Law § 5102(d), a pre-requisite for plaintiffs seeking money damages in connection with a motor vehicle accident. In support of their motion, defendants submitted physician reports summarizing orthopedic and neurological independent medical examinations of plaintiff, and a radiologist’s report of his review of plaintiff’s medical images. Importantly, the orthopedist’s report noted no significant findings from a straight leg raise test, but did not note what would be normal findings in such a test. Additionally, neither the neurologist’s nor the orthopedist’s reports addressed plaintiff’s claims of post-concussion headache syndrome, or her claimed left shoulder or thoracic spine injuries. Because of this, since defendants’ evidence “did not address all areas of claimed injuries clearly set forth in the plaintiff’s bill of particulars claimed injuries nor did they compare their findings to what is normal,” issues of fact remained as whether those unaddressed injuries amounted to a “serious injury.” As such, the court denied defendants’ motion since the proffered evidence failed to meet their prima facie burden of showing a lack of serious injury, and the court did not even need to consider the sufficiency of plaintiff’s opposition. This case demonstrates the importance of being thorough in conducting plaintiff IMEs when defending motor vehicle cases. Successfully arguing that plaintiff did not suffer a “serious injury” as defined by N.Y. Insurance Law requires producing objective medical evidence rebutting each and every claimed injury. Collado v. Chiarello .pdf Download PDF • 164KB Previous Next Contact

News Ouch! When Bedbugs Bite, Must Landlords Feel the Pain? June 21, 2010 < Back Share to: It is this exact question that a New Jersey appellate court has just decided. In the case of Mitchell v. Capitol Management, Marilyn Mitchell's one bedroom apartment in an 800 unit complex was indisputably infested with bedbugs. She sued the landlord on a negligence theory. At trial, the trial court directed a verdict for the defense holding that there was no evidence "about how the bed bugs got into her apartment or that the landlord was at fault." An appeal resulted and the Superior Court, in an unpublished opinion, has just weighed in. The appellate division upheld the trial court and held that the plaintiff's burden is to prove, at trial, that landlord negligence caused the infestation. Landlord negligence cannot be assumed merely because the bedbugs exist. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202462790452&slreturn=1&hbxlogin=1 Previous Next Contact

News Mischievous Raccoons Can’t Be Malicious (PA) November 7, 2019 < Back Share to: The Western District of Pennsylvania recently decided an unusual case in Capital Flip v. American Modern Select Insurance Co.: whether a raccoon damaging a house was covered under a dwelling insurance policy pursuant to a vandalism or malicious mischief rider. Specifically, this case presents as a dispute between Capital Flip LLC and its insurer, American Modern Select Insurance Co. pursuant to a homeowners’ dwelling policy. At some point it was discovered that raccoons had entered the property and did what racoons normally do (malicious or not) – cause substantial damage. Capital Flip subsequently sought coverage under the policy, pointing to a clause covering losses arising from “vandalism or malicious mischief.” American Modern denied coverage and this lawsuit followed. American Modern filed a motion to dismiss, contending that damage caused by raccoons simply could not be covered under the vandalism or malicious mischief clause, as animals cannot have subjective intention. Capital Flip argued that the policy did not define “vandalism or malicious mischief”, thus rendering it possible those terms encompassed damage by animals. The Court agreed with American Modern, holding that under reasonable definitions of “mischief” and “vandalism”, a subjective intent combined with an intended unfavorable result was required – and raccoons simply did not have that intellectual ability. Put simply, despite creative thinking, these terms require human actions. Despite the popular opinion that racoons are malicious, this is yet another instance where the Courts simply disagree. Thanks to Matthew Care for his contribution to this post. If you have any questions, please email Georgia Coats. Previous Next Contact

News No Insurance Experience-No English-No Excuse For Misrepresentation in NJ September 29, 2010 < Back Share to: In Rashabov v. Alfuso, the New Jersey Appellate Division affirmed summary judgment in favor of Selective Insurance Company based on plaintiff's misrepresentation in the application. The issue was whether Selective was required to provide PIP benefits to the plaintiff/insured and three other family members despite inaccurate information in the application regarding the number of adult residents in his household. Plaintiff argued that he lacked experience in obtaining automobile insurance and did not speak English. His application was completed with assistance from the dealership where he purchased the vehicle and listed the plaintiff as the only resident of his household. Investigation revealed that plaintiff resided with his wife, father, mother and two brothers who were all adults and three of whom also sustained injuries in the accident. The Appellate Division affirmed summary judgment finding a material misrepresentation. Please contact Robert Ball with any questions regarding this post. http://www.judiciary.state.nj.us/opinions/a3684-08.pdf Previous Next Contact

News Property Insurers Are Not Responsible For Financial Losses (NY) March 3, 2023 < Back Share to: Over the three years since the start of the pandemic, business owners have filed over 2,400 lawsuits over business interruption losses resulting from the pandemic and government orders. Both federal and state courts have upheld motions to dismiss these claims. The Second Circuit in 10012 Holdings, Inc. v. Sentinel Insurance Co. applied New York law to affirm the dismissal of an art gallery's Covid-19 business interruption claim, holding that "'direct physical loss' and 'physical damage' ... do not extend to mere loss of use of a premise, where there has been no physical damage to such premises; those terms instead require actual physical loss of or damage to the insured's property." This decision falls in line with the 10 other circuit courts, having all unanimously said that property insurance does not encompass economic losses from Covid-19-related business interruption claims. Business interruption insurance typically appears as an add-on to commercial property insurance policies. This coverage is designed to make the insured whole for lost income and additional expenses incurred during a period when business operations are interrupted because of a covered cause of loss. Loss of use of premises when there is no physical damage does not constitute a “direct physical loss” that is covered by the policy’s business income and extra income provisions. Thanks to Dominika Rybaltowski for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Owner has "Grace Period" to Clear Snow After Early Morning Storm (NY) October 25, 2012 < Back Share to: Although no court has yet to specify the exact amount of time an owner has to remove snow after a storm, the Appellate Division, First Department in Robinson v 156 Broadway Assoc., LLC sheds light on the issue. There, the plaintiff slipped on ice located on the top step of an exterior staircase at 6:30 a.m. The storm had ended sometime in the "early morning hours." The First Department upheld the grant of summary judgment to the landowner. The court stated that an unreasonable amount of time had not elapsed from the end of the storm to when the landowner began its snow removal efforts. Although not specifying the specific amount of time, the court acknowledged that the owner was entitled to a "grace period" before clearing snow. Thus, where a storm ends overnight, it appears the owner is allotted additional time to remove snow. The Robinson decision is also noteworthy because the court dismissed the plaintiff's claims that short handrails contributed to the accident. It was undisputed that these handrails violated the local building code. However, since the accident happened at the top of the stairs, the plaintiff never attempted to use the them. Thus, the court reasoned that they were not a cause of the accident. Thanks to Bill Kirrane for his contribution to this post. If you have any questions or comments, please email Paul at pclark@wcmlaw.com Previous Next Contact