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News Balancing Risks: Understanding How Obvious Dangers Shape Legal Decisions < Back Share to: Recently, the Middle District of Pennsylvania granted a Motion for Summary Judgement in favor of defendants for a trip and fall incident that occurred in a Sam Club, captioned: Nura Ziadeh v. Walmart Inc. a/b/a Sams East Inc. d/b/a Sam’s Club Store No. 8175. The crux of the matter boiled down to a fundamental act: using one's eyes. In the backdrop of this case, Ziadeh found herself injured while perusing the aisles of her regular shopping haunt, Sam's Club. As outlined in the court's memo, Ziadeh, engrossed in examining towels, suddenly collided with an obstacle, causing her to tumble to the ground. That obstacle? A two-meter-long pallet, conspicuously occupying half of the aisle. Ziadeh claimed negligence against Sam’s Club. Sam’s Club moved for summary judgement, on the basis that Ziadeh failed to provide facts supporting her claim because she failed to avoid an open and obvious condition. Ziadeh disagreed, mainly on the basis that there was an issue of genuine material fact of her subjective awareness of the danger. The Court had no problem granting the MSJ in favor of Sam’s club. Relying on Moknach v. Prese Isle Downs (2021) from the Third Circuit, the Court distinguished between the “open and obvious” danger doctrine, which is an objective test, from Ziadeh’s claim that this was an “assumption of the risk” issue, which requires subjective knowledge. Further citing to the Restatement (Second) of Torts, the Court noted that a possessor of land is not liable to invitees (i.e. there is no duty) for physical harm done to them by dangers “known or obvious”. Knowledge in this definition is an objective, rather than subjective question; in other words, the Court asked: “would a reasonable person, in Ziadeh’s position and exercising ordinary caution and judgement, apprehend the danger of walking into a pallet lying on the floor?” The answer was yes. Objectively, the pallet was not hidden from view, but rather took up half of the aisle. Dismissing the assumption of risk argument, the Court noted that such an argument first requires a duty to exist in the first place between the invitee and the possessor of land. However, since it was established that Sam’s Club owed no duty to Ziadeh because the pallet was an objectively obvious danger, subjective apprehension of the danger given the facts was not relevant. This case highlights that in premises liability cases, the M.D.P.A still demands plaintiffs remain somewhat accountable for their own choices and actions, and to use their eyes to avoid easily observable dangers. Ziadeh v. Sam's Club .pdf Download PDF • 149KB Previous Next Contact

News NY App. Div.: "As Is" Condition Defeats Products Liability Claim November 20, 2009 < Back Share to: One policy underlying products liability law is to shift responsibility where it seems most just when a product causes physical injury. The choices are few, with the law generally titling in favor of the injured party as opposed to a product manufacturer. In Meyer v. Alex Lyon & Son, plaintiff purchased a man lift at an auction on an "as is" basis for use at work. After picking up the lift, he brought it to an equipment company for service and inspection, aware that it was not safe for use. Before that company could complete its inspection, plaintiff took possession of the lift. Ever the careful company, the inspector obtained a written assurance that plaintiff understood the dangerous condition of the equipment and required that he sign a hold harmless agreeement before the lift was released. Plaintiff took the lift and used it for two days at work without incident. But as [bad] luck would have it, he was injured in a fall after the lift failed at his home. Not short on chutzpah, he sued the product manufacturer, the auctioneer and service company seeking recovery based on strict products liability, breach of warranty and negligence. Citing the plaintiff's explicit knowledge of the product's defect, the Appellate Division upheld the dismissal of plaintiff's complaint. Plaintiff was aware of the dangerous state of the lift and was in the best position to avoid his own injuries. Every now and then, common sense prevails...even in the law. If you have any questions about this post, please email Paul at pclark@wcmlaw.com http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08484.htm Previous Next Contact

News Failure to Confirm Judgment Leads to Defense Victory (NY) March 17, 2023 < Back Share to: When a plaintiff obtains a default judgment against a defendant, sometimes the fight is far from over. While the discretion ultimately remains with the court, a default judgment may be vacated against a defendant, or an inquest will be held if the motion to vacate is denied. However, even after an inquest is held and damages are determined, a plaintiff must submit a notice of settlement and proposed judgment within 60 days or else it will be void. 22 NYCRR 202.48(a) For example, in Cruz v. Pierce, 2022 NY Slip Op 07054 (2nd Dep’t December 14, 2022) the plaintiff was injured while performing work at real property that was owned by the defendant. After being served with the summons and complaint, the defendant failed to answer. Plaintiff subsequently moved for leave to enter a default judgment. The Court not only granted the motion but directed an inquest for damages. At the close of the inquest, Plaintiff was entitled to recovering $274,541.54. The Court directed the plaintiff to settle judgment on notice. Thereafter, the plaintiff failed to submit a notice of settlement and proposed judgment until nearly 2 years after the order. Accordingly, the defendant moved to vacate the decision made after the inquest based upon the plaintiff’s failure to submit the notice of settlement and proposed judgment within 60 days as the Court directed them to. Accordingly, the Second Department granted the Defendant’s motion on the grounds that the plaintiff failed to timely settle the judgment pursuant to 22 NYCRR 202.48(a) and on plaintiff’s failure to show good cause for his lengthy delay in submitting the notice. This case shows that the procedural rules must always be followed – or not, at your own peril. Thanks to Lauren Howard for her contribution to this article. Should you have any questions, contact Matthew Care. 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

News Third Circuit Encourages Insurers to Settle Claims and Incentivizes Licensees to Serve Alcohol Responsibility (PA) August 31, 2018 < Back Share to: On August 22, 2018, in Encompass v Stone Mansion, the United States Court of Appeals for the Third Circuit (“Third Circuit”) filed a precedential decision holding an insurer is permitted to file an action for contribution against a licensee that allegedly serves a visibly intoxicated customer who causes injuries to a third-party. In holding Pennsylvania’s Dram Shop law is designed to protect society from the negligent service of alcohol, the Third Circuit rejected a licensee’s claim that the Dram Shop law precludes an insurer from seeking contribution on behalf of its insured. The underlying case arose out of a tragic car crash that killed the intoxicated driver, who was allegedly overserved alcohol at Stone Mansion Restaurant Incorporated (“Stone Mansion”), and seriously injured the sole passenger. The passenger sued the driver’s estate for her injuries claiming the accident occurred because the driver had been driving while intoxicated. The driver’s estate then tendered its defense to Encompass Insurance Company (“Encompass”), the vehicle’s liability insurer. Ultimately, Encompass and the passenger entered a settlement agreement, and the passenger released all of her claims against all possible defendants, including Stone Mansion, to Encompass. Encompass then brought an action in Pennsylvania state court alleging: (1) it stood in the shoes of the insured [the driver’s estate]; (2) Stone Mansion served alcohol to the driver while he was visibly intoxicated; (3) “[u]nder Pennsylvania’s Dram Shop law, a business or individual who serves alcohol to a visibly intoxicated person is legally responsible for any damage that person might cause”; and (4) Stone Mansion, as a joint tortfeasor under the Uniform Contribution Among Tort-feasors Act (“UCATA”), was liable to Encompass for contribution. Although, Encompass objected, the action was removed to the United States District Court for the Western District of Pennsylvania. Once in District Court, Stone Mansion filed a motion to dismiss the action under Federal Rule of Civil Procedure 12(b)(6) – ultimately, the District Court granted Stone Mansion’s motion with prejudice based on “the plain, unambiguous reading of” Pennsylvania’s Dram Shop law. Encompass appealed. The Third Circuit faced two issues on appeal: (1) whether the District Court erred in denying Encompass’ motion to remand the matter to the Pennsylvania state trial court; and (2) whether the District Court erred in dismissing the matter. While the Third Circuit held the case was properly removed to federal court, it ruled the District Court erred in granting Stone Mansion’s motion to dismiss. Specifically, the Third Circuit held that the UCATA establishes that “[t]he right of contribution exists among joint tort-feasors” and that a “joint tort-feasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tort-feasor whose liability to the injured person is not extinguished by the settlement.” The Third Circuit determined the Dram Shop law only permitted a third-party to recover for injuries sustained due to a customer of the licensee, if the licensee served alcohol to that customer when the customer was visibly intoxicated. Nevertheless, the Third Circuit noted equity was an important consideration in the matter and that nothing in the Dram Shop law shields licensees from responsibility for contribution among tortfeasors for harm caused to protected third-parties. Further, while Encompass was not the type of third-party envisioned for protection under the Dram Shop law, the Third Circuit held that because Encompass’ settlement agreement with the passenger extinguished Stone Mansion’s potential liability to the passenger, Encompass was entitled to pursue a claim of contribution against Stone Mansion under UCATA. In finding Encompass presented a distinct claim for contribution under UCATA, it held that the District Court erred in dismissing the case based on the Dram Shop law. Thanks to Lauren Berenbaum for her contribution to this post. Please email Vito A. Pinto for more information. Previous Next Contact

News The Importance Of Being An Expert (PA) July 11, 2019 < Back Share to: Experts reports and opinions are paramount in proving a party’s theory of the case. In State Auto v. Kim Eagan Woods, the Middle District Court of Pennsylvania addressed a situation where a Defendant-Insured moved for summary judgment against a Plaintiff-Insurer over an apartment fire. Defendant's apartment was insured by the plaintiff and was damaged by fire. Plaintiff, relying on its expert's report, asserted the fire was started by defendant's negligently lit cigarette and commenced a declaratory judgment action. Defendant argued the fire was caused by a lamp, and further that there was no evidence to support the plaintiff’s claim. However, defendant did not retain an expert to support her contention. Plaintiff’s expert reviewed the evidence supplied in the case and conducted an examination of the scene of the fire. The expert determined that the fire was caused by a negligently lit cigarette, noting a lighter and ten empty cigarette packs in the apartment. He determined that, although the wire of the lamp showed fire damage, it was not the cause of the fire. Subsequently, the defendant moved for summary judgment. In analyzing the motion, the Court found that the plaintiff’s expert report, and other supporting evidence, set forth a prima facie case of negligence sufficient to survive summary judgment. Importantly, the Court noted that the defendant did not move to exclude the expert report or preclude the expert's testimony in her motion. The Court further noted that even if the defendant had moved to exclude the expert’s testimony, the judge would not have granted it because of the wealth of support for the expert’s opinion. In most cases, all parties to a case will retain an expert who will conduct a review of the evidence/location of interest and author a report that supports the respective party’s theory of the case. Here, the defendant moved for summary judgment based on a lack of evidence to support the plaintiff’s case. Crucially, the defendant failed to retain an expert to support her theory of the case. The Court was, thus, faced with a situation where a layman’s theory of the case was pitted against that of an expert. As such, this case exemplifies the importance of retaining an expert when a case involves technical issues, especially if the opposing party has already obtained an expert. Thank you to Malik Pickett for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Can Nurses Opine on Medical Causation? PA's Supreme Court Seems Set to Decide the Issue. December 4, 2009 < Back Share to: In most personal injury cases, an independent medical examination referral is a necessary evil. In low value cases, this can be problematic in that the usual $1,500 cost of an IME (by a doctor) can be worth almost as much as the case itself (especially in Philadelphia’s arbitration court). The nature of the business may, however, be about to change. Earlier this week the PA Supreme Court heard arguments in the case of Freed v. Geisinger Medical Center . At issue in this case is whether a registered nurse can opine on both the standard of nursing care and medical causation under PA's Medical Care Availability and Reduction of Error Act. If the court rules that a registered nurse can opine on medical causation (assuming they otherwise meet the expert standards), there may suddenly be a much larger pool of experts to draw from. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202436044407&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20AM%20Legal%20Alert&cn=TLI_AM_LegalAlert_20091204&kw=High%20Court%20Considers%20Scope%20of%20Nurses'%20Testimony%20Again&slreturn=1&hbxlogin=1 Previous Next Contact

News PA Court Vacates $35 Million Award due to Plaintiff's Potential Negligence May 25, 2018 < Back Share to: Under the Pennsylvania’s Comparative Negligence Act, a plaintiff’s contributory negligence can be considered when compared to a defendant’s negligent conduct— but not to reckless conduct. Recently, the Superior Court established an interesting work-around in the context of multi-plaintiff actions, where one plaintiff can be held liable to the defendant for contribution and indemnity for the harm that plaintiff’s actions contributed to the other plaintiffs’ injuries. In Straw v. Fair, Plaintiff John Straw was driving with three family members on the highway when the car’s failed hood mechanism caused the hood to open and obstruct his view. Mr. Straw stopped the car in the travelling lane and turned on his hazard flashers. Kirk Fair was driving a truck for Golon Masonry behind the Straws. Mr. Fair was under the influence of drugs, did not notice the stopped car, and crashed into the Straws at approximately 60 miles per hour. The accident seriously injured Mr. Straw and two of the passengers; the Straws’ six year-old-son died. Mr. Fair was convicted of several crimes, including DUI and Recklessly Endangering Another Person (REAP). Golon Masonry filed a cross-claim against Mr. Straw for indemnity and contribution. The basis of the claim was that Mr. Straw was responsible for the passenger’s injuries because he did not need to leave the car in the running lane. The Straws filed a motion for summary judgment of Golon Masonry’s cross-claim, and the trial court ruled that because Mr. Fair’s conduct was reckless—as evidenced by his guilty plea to REAP—Mr. Straw’s comparative negligence could not be considered because the Act only applies to a defendant’s negligent conduct. The case went to trial and the jury returned a verdict of $35 million. The Superior Court reversed the trial court’s finding because it “mistakenly confused [Golon Masonry’s] cross-claim against Mr. Straw with [Golon Masonry’s] affirmative defense that Mr. Straw was comparatively negligent for his own injuries.” The Superior Court reasoned that the trial court was correct in interpreting the Act as not applying to reckless conduct. However, in asserting a cross-claim for indemnity or contribution, defendants were not alleging that Mr. Straw’s negligence should not reduce or diminish his recovery. Rather, the cross-claim alleges that Mr. Straw’s negligence renders him directly liable to the passengers or to defendants for contribution. Thus, Mr. Straw was essentially just another defendant as to this cross-claim. The Superior Court clearly held that Pennsylvania law permits contribution between reckless and negligent co-defendants—and in this context can be applied to a plaintiff. As a result, the Superior Court reversed the trial court’s motion for summary judgment and vacated the $35 million verdict. Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News New York Coverage Action Dismissed On the Basis of Pennsylvania's Sovereign Immunity February 26, 2008 < Back Share to: Kemper issued a General Contractor's Pollution Liability Policy to the Pennsylvania DOT ("PennDOT"), which constructed a major highway in that state. The policy was issued in Pennsylvania and obtained through a Pennsylvania retail broker. During the course of the project, serious enviromental damage occurred in Pennsylvania. Of significance, the policy contained forum selection and choice of law provisions designating New York as the appropriate forum and source of substantive law for any dispute. During post loss coverage negotiations, Kemper filed a declaratory judgment action in New York. PennDOT responded by filing a parallel action in Pennsylvania and eventually moved to dismiss the New York action. The New York court dismissed the declaratory judgment action, recognizing Pennsylvania's sovereign immunity and the limited conditions under which such immunity could be waived. For example, like many states, Pennsylvania and its state agencies could only be sued in the statutorily created Board of Claims. In sum, Pennsylania's sovereign immunity trumped clearly drafted forum selection and choice of law policy provisions. No doubt the court was persuaded that the dispute's limited contacts with New York and Pennsylvania's substantial interest in deciding the issues of coverage tipped the scales in favor of Pennsylvania. http://decisions.courts.state.ny.us/fcas/FCAS_docs/2008JAN/3006001752007002SCIV.pdf Previous Next Contact

News "Stalker" Imperils Jury Verdict (NY) November 20, 2013 < Back Share to: A favorable defense verdict is a precious item. It is secured by thorough preparation, a persuasive presentation, favorable facts, and a little luck. The last thing a party wants to see is the verdict overturned because of some unauthorized contact with the jury. Bohn v. Forba took fifteen days to try. The jury returned a unanimous defense verdict and the trial judge, as was her custom, privately thanked them for their service. When she asked if they had any questions, the jurors inquired about the person “stalking” them throughout the trial. The jurors further described him as “creepy” and “seedy” and related that he seemed to follow them in the courthouse elevators, lobby and local restaurants. Some expressed concern that the "stalker" was videotaping them. After one juror observed this person talking to defense counsel and his two clients, the juror concluded that he must be associated with the defense team. The mystery man was, in fact, a partner “in a New York City law firm” who was monitoring the case for the insurer of several defendants and reporting back to his client on issues involving insurance coverage. He later denied any attempts to speak with the jurors and explained that his proximity to them in the courthouse and surrounding restaurants was merely coincidental. After speaking with one of the jurors without the attorneys but on the record, and taking sworn testimony from the coverage attorney in the presence of all counsel, the court concluded that coverage counsel “made improper contact with the jury.” The trial judge believed that he “continuously followed and monitored the jurors when they went to lunch, when they took smoking breaks and when they rode the elevators.” Sensing that their favorable jury verdict was in peril, the defense attorneys argued that the court’s ex parte interview of the jury was improper and that if anyone was harmed by the perception of stalking by a suspected defense representative, it was the defendants. On this critical issue, the court held that prejudice would be presumed. It further found that the jurors were likely influenced by the alleged improper conduct, speculating that they may have felt intimidated and compelled to render a defense verdict. In matters involving the jury, the court’s message is clear: keep a wide berth of the jury so that even the appearance of improper contact can never be raised. We suspect that the court’s approach of questioning the jurors outside the presence of trial counsel will become a major issue on appeal since defense counsel was never given the opportunity to explore what prejudice, if any, resulted from the perceived conduct of coverage counsel. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News WCM Victorious in Second Department Appeal Arising Out of a Personal Injury Burn Case February 1, 2013 < Back Share to: New York, NY Counsel Cheryl Fuchs and Associate Gabriel Darwick successfully convinced the Second Department to reverse a Brooklyn trial court decision that denied our client’s motion for summary judgment in a case involving burns allegedly sustained in a bathtub. In Mauskopf v. 1528 Owners Corp., the decedent was found in his bathtub with burns to the left side of his body. The then 95-year old died a month and a half later. There were no witnesses to the accident, but the decedent’s son claimed his father told him he was burned in the bathtub. We represented G. Bauer, Inc., a boiler service company that, upon request, performed repair and maintenance work on the burner of the building and otherwise performed annual Department of Building inspections of the boiler. We moved for summary judgment on the basis that plaintiff could not identify the cause of the decedent ’s injuries without resorting to hearsay or speculation. We also argued, that even if the decedent was burned in the bathtub, G. Bauer did not have a contract with the building to perform routine or systematic maintenance of the boiler, and never performed work on, or inspected the mixing valve that controlled the hot water temperature. The trial court judge denied our motion on the basis that there were “issues of fact”. The alleged "issues of fact" were not identified in the court's order. On appeal, the Second Department reversed the trial court and granted our motion on the basis that G. Bauer owed no duty to the plaintiff, as there was no evidence that G. Bauer’s work involved inspection or maintenance of the mixing valve. Previous Next Contact

News PA Court Holds Instagram Account Discoverable March 30, 2018 < Back Share to: Pennsylvania law on the discoverability of social media records remains in flux, but a recent decision involving an auto accident and Instagram photos gives some guidance to circumstances in which a party may be compelled to provide discovery pertaining to social media content. In Kelter v. Flanagan, plaintiff filed suit after suffering injuries in an automobile accident. Following the deposition of the plaintiff, defendant filed a motion to compel, seeking log-in information to plaintiff’s Instagram account. Pennsylvania law states that relevant information may be obtained in discovery unless it is privileged. As held in previous cases, social networking accounts can be discoverable if it appears that they likely contain information that could be relevant, supported by the fact that there does not appear to be an expectation of privacy for social media accounts as because the account holder is sharing information with others in a public or quasi-public domain. In this case, plaintiff had publicly viewable Instagram posts showing her engaged in various physical activities after the accident. The posts included references to the plaintiff shoveling snow and going to the gym after the accident, although in her testimony she claimed that her injuries made her unable to engage in these activities. The judge explained that the posts were certainly relevant to establish the extent of her injuries and the success of her rehabilitation. The defendant asked for further discovery on plaintiff’s Instagram account, but plaintiff opposed, arguing that defendants already had access to all of the information because her Instagram posts at the time of the deposition were maintained in a public account. The defendant argued that the plaintiff could switch her account to private access at any time, leaving the defendant with no access to the information contained in the posts. The defendant also raised concerns that previously public posts could be deleted. The court found that the facts of this case established that there may be other relevant information about the plaintiff’s injuries contained in her Instagram account. The judge explained that the fact that there were some available public posts for a period of time did not eliminate the need for full access to plaintiff’s account, as the account could be converted to a private account, blocking the defendant’s access to the information. The judge further instructed the plaintiff not to remove any content from her Instagram account and defense counsel shall not share information gathered from plaintiff’s account with anyone not involved in the case. Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono with any questions. Previous Next Contact