News While Use Of Man-Lift Results In Death, Employer, Repairer, Inspector and Manufacturer Not Liable October 9, 2008 < Back Share to: In Altinma v. East 72nd Garage Corp et al, plaintiff’s decedent sustained fatal injuries when he was allegedly pinned beneath a single-person vertical transportation device called a man-lift while working at Somerset Garage in Manhattan. Plaintiff brought this action against East 72nd, the garage license holder, Ace Overhead Garage Door Inc, the entity that repaired the man-lift on an as-needed basis and Charles Calderone Associates Inc, the entity that performed annual inspections of the man-lift. Multiple third-party actions were commenced, including an action in strict products liability against Humphrey Man-Lift Corp, the man-lift manufacturer. All of the original parties and Humphrey moved for summary judgment. The trial court granted East 72nd summary judgment as against plaintiff, but denied summary judgment as to cross-claims. Humphrey was also awarded summary judgment and all of the original parties appealed. The Appellate Division, Second Department reversed the trial court’s decision and granted summary judgment to Ace and Calderone and affirmed the trial court’s decision as to East 72nd and Humphrey. Unpersuaded by plaintiff’s arguments that Ace and Calderone may have in the performance of their duties failed to properly inspect or warn so to “launch a force or instrument of harm,” the Appellate Court found as a matter of law they did not owe a duty to the non-contracting plaintiff. For East 72nd, the trial court correctly found the decedent to be a special employee and dismissed the action pursuant Workers’ Compensation Law §11. However, since the decedent suffered a grave injury, co-defendants’ cross-claims for indemnification and/or contribution remained viable. Lastly, since there was no triable issue of fact as to whether Humphrey marketed the man-lift that was not reasonably safe or that the alleged defective design of the man-lift was a substantial factor in causing plaintiff’s injury, the decision to grant Humphrey summary judgment was affirmed. http://www.nycourts.gov/reporter/3dseries/2008/2008_07202.htm Previous Next Contact

News For Whom Do I Sign? New Jersey Appellate Division Finds Chaperone Lacked Authority to Sign Liability Waiver May 28, 2021 < Back Share to: In Gayles v. Sky Zone Trampoline Park, et al., the Superior Court of New Jersey Appellate Division examined whether a parent had apparent authority to sign a liability waiver on behalf of the parents of other children who attended her son’s birthday party at a trampoline park. Under the facts of the case, the parent chaperone, Joan Tongol, invited the plaintiff’s son, as well as eight other friends, to her son’s birthday party at the trampoline park. Upon arrival, the trampoline directed Ms. Tongol to e-sign an agreement waiving certain rights, and agreeing to arbitrate any liability claims. The waiver opened with the following language: “I[,] on behalf of myself, my spouse, my children, my parents, my heirs, my assigns, personal representatives, estate, and insurers, agree as follows.” The waiver further requested that the signer certify to being the parent or legal guardian of the children listed. Ms. Tongol read, completed, and signed the agreement. Ms. Tongol later testified she was authorized to sign the agreement on behalf of all the children present in her group. During the birthday party, the plaintiff’s son fractured his leg while playing on the trampolines. Plaintiff sued Sky Zone for negligence individually and on behalf of her son. Sky Zone moved for summary judgment citing the signed waiver and argued that it had a reasonable belief that Ms. Tongol possessed apparent authority to sign on behalf of the other children and their parents. The trial court denied the motion, and Sky Zone appealed. Under the doctrine of apparent authority, liability is imposed upon a principal not due to an actual contractual relationship, but because the principal’s actions misled a third-party into believing a relationship of authority existed. Mercer v. Weyerhaeuser Co., 324 N.J. Super (App. Div. 1999). The party seeking to rely upon such authority bears the burden of proof. In its decision, Court also noted its recent adoption of the Restatement (Third) of Agency. Under the Restatement (Third) of the Agency, the question for the trier of act is whether a reasonable person in the position of the third party would believe the agent had the authority or right to act. Here, the Court observed that Sky Zone’s employees neither asked Ms. Tongol about her representations nor took notice of the eight different surnames on the waiver form. The Court agreed with the trial court that the assumption of authority without further questioning by Sky Zone was patently unreasonable. Additionally, the Court noted there is no New Jersey case law in which a party, who is not a parent, guardian, or attorney-in-fact, had authority to waive a minor’s claims for personal injury. Thanks to Benjamin Ferrell for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News M.D. PA -- Contractual Claims Are Not Occurrences. December 10, 2007 < Back Share to: In the case of Nationwide Mutual Insurance Co. v. CPB International, Inc., PICS Case No. 07-1964, the W.D. PA, ruled that "claims sounding in contract do not arise from an "occurrence," which means an "accident."" The court therefore sided with the insurer and held that there was no coverage under the CGL policy for the defective nutritional supplement claims against the defendant. Previous Next Contact

News NJ: Insurance "Step Down" Provision Upheld November 18, 2009 < Back Share to: A clause in an insurance policy that reduced the available policy limit for a truck driver who was not named within the policy’s “Schedule of Reported Drivers” from $500,000 to the minimal statutory amount of $15,000 was upheld where the policy language was clear and unambiguous. Although the Court commented upon the substantial injuries sustained by the plaintiff who jumped from a moving train when it collided with a Freightliner truck, it concluded that sympathy for the plaintiff could not override the clear and unambiguous policy term. Finding the policy term clear, the court held the policy holder to the term as written despite an argument that he may not have understood it due to a language difficulties. Additionally, although the plaintiff argued that such a “step-down” clause should be void as against public policy, the court disagreed. Specifically, the court affirmed the insurer’s “legitimate underwriting concern” to limit its exposure when a large commercial truck is operated by a driver who it had not investigated, rated or approved. Moreover, the Court noted that New Jersey’s Supreme Court has upheld similar provisions. See Ford v. National Independent Truckers Insurance Co., 2009 WL 3762423 (App.Div. 2009)(unreported decision) www.judiciary.state.nj.us/opinions/a0167-08.pdf If you would like more information regarding this post, please email denise at dricci@wcmlaw.com Previous Next Contact

News Routine Inspection Evidence Fails To Trump Notice Issue (NY) July 6, 2016 < Back Share to: Property owners have a duty to keep their premises safe and secure, and to protect visitors from slipping hazards. One of the key defenses available to property owners in premises liability actions is that they lacked notice of the slippery condition because it occurred and injured the plaintiff before the defendant had a reasonable opportunity to discover and correct it. In Sada v August Wilson Theater , the plaintiff was injured after he slipped and fell on a wet staircase. There had been one inch of snow that day. The plaintiff testified that he observed a soaked mat near the theater door when he first arrived. He specifically told an usher during intermission that the mat was wet and that the usher should do something about it. Plaintiff fell on a wet area near the mat roughly 15 minutes later. Defendant moved for summary judgment on the grounds that it lacked notice of the allegedly hazardous condition, and the trial court denied the motion. The First Department unanimously upheld the trial court’s ruling, holding that defendant had failed to establish that it lacked constructive notice of the slippery condition in its lobby. While defendant submitted testimony from both the porter on duty the night of plaintiff’s fall and a theater manager, both of whom testified at length regarding the theater’s policies and procedures for keeping the theater clean and free of pooled water, neither witness testified as to what the theater had done to inspect and clean pooled water on the night of plaintiff’s injury. The First Department concluded that without specific evidence of what the theater had done on the night of plaintiff’s injury, defendant could not establish a lack of notice of slipping hazards – particularly given the plaintiff’s testimony regarding the notice he had given the usher. Thus, the court concluded the plaintiff had presented a question for the factfinder about whether his warning to the usher 15 minutes before his fall was sufficient to give defendant notice of the slippery condition and time to remedy it. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News The Court May View, But Not Weigh, the Evidence on Summary Judgment September 16, 2022 < Back Share to: In Garcia v. Security First Ins. Co., 5D21-1456, 2022 Fla. App. LEXIS 6197, 2022 WL 4111171 (Fla. 5th DCA September 9, 2022) the insured homeowner made a claim for water damage after a roof leak claim. At deposition, the insured admitted to a prior roof leak and later produced pictures and a damage report. The insurer moved for summary judgment arguing that the insured’s concealment of the prior damage and false statement regarding the pre-loss condition of the home forfeited coverage. The trial court, finding that it was entitled to weigh the credibility and the evidence under Florida’s new summary judgment rule (which mirrors the federal rule), granted summary judgment. On appeal, Florida’s Fifth District Court of Appeal reversed, holding that: “Credibility determinations and weighing the evidence ‘are jury functions, not those of a judge,’ when ruling on a motion for summary judgment.” While this sounds basic, there has been much debate over the reach of Florida’s new summary judgment rule – some argue that the court may weigh the evidence, others argue that it may not. Garcia is the first appellate case decision dealing with the issue and every trial court in Florida must follow Garcia until the appellate court sitting in their District rules differently. Claims professionals should keep Garcia in mind when seeking summary judgment in Florida. Thanks to Charles "Chip" George for his contribution to this post. Please contact Chip with any questions. Previous Next Contact

News Plaintiff's Summary Judgment Motion Gets Schooled by Department of Education (NY) January 24, 2020 < Back Share to: In E.W. v. City of New York, the plaintiff, a then-third grade student at P.S. 44, was injured while walking between classes when he stopped to converse with a friend. The plaintiff alleges that the door he was holding, while he was talking, automatically closed on its own. The door severed the tip of plaintiff's index finger, which had become caught between the door and the doorjamb near the hinges. As a result of the plaintiff's injuries, the plaintiff and his mother commenced a personal injury action against defendants, the City of New York and the New York City Department of Education (“DOE”). After discovery was complete, the defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the defendants' motion and in response, the plaintiffs appealed. The New York Appellate Division, Second Department found that the Supreme Court properly granted the branch of the defendants' motion for summary judgment dismissing the cause of action alleging negligent supervision. In reaching this decision, the Court recognized that although schools have a duty to provide supervision to ensure the safety of those in their charge, schools will be held liable only for foreseeable injuries proximately related to the absence of adequate supervision. The Court determined that when an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not the proximate cause of the injury. Therefore, the Court found that the defendants established, prima facie, that any alleged inadequacy in the level of supervision was not a proximate cause of the accident. As for the City, the Court also found that the City established its prima facie entitlement to judgment as a matter of law dismissing the complaint by showing the accident occurred on public school premises, which the City did not operate, maintain, or control. This decision serves as a reminder that while schools owe a duty to students to provide supervision, only those injuries that are both foreseeable and proximately related to the absence of adequate supervision will invoke liability. Thank you to Caitlin Larke for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Pennsylvania Court Rejects Piercing Corporate Veil of LLC March 20, 2012 < Back Share to: In Walmsley v. Ehmann, plaintiffs obtained a judgment against a defendant that held a 50% interest in a limited liability corporation. Plaintiffs sought to pierce the corporate veil of the LLC to enforce to judgments against the defendant personally. Plaintiffs argued that the sole purpose of the LLC was to hold the stock of another corporation, as the sole shareholder. The court, however, stated that an LLC need not adhere to the same formalities as a corporation, and any lack of formalities must lead “to some serious misuse of the corporate form” to allow the corporate veil to be pierced. Since plaintiff could not prove that the LLC was established to defraud creditors or for another improper purpose, the court would not pierce the veil, and dismissed the case. Thanks to Colleen Hayes for her contributions to this post. For more information about this post, please contact Cheryl Fuchs at cfuchs@wcmlaw.com . Previous Next Contact

News Common Owners Get Hit With Joint Liability (PA) May 6, 2022 < Back Share to: In a recent case from the Eastern District of PA, Snyder v. Hunt, the court granted plaintiff’s appeal for a directed verdict after finding plaintiff established a prima facie case of premises liability against common landowners. Evidence provided multiple owners of a driveway extending between two rows of houses and enjoyed an easement over the driveway in common with other abutting owners, would all be jointly and severally liable in the absence of an agreement to the contrary. Thus, all were responsible for the maintenance and repair of that portion of the driveway abutting or located on his/her land. Mscisz v. Russell, 487A.2d 839 (Pa. Super. 1984). The plaintiff in the case tripped and fell while crossing a common driveway at an apartment complex owned by the defendants. The subsequent case was based on a negligence claim alleging that the owners have a duty to maintain the sidewalk and they breached the duty, The defect was a hole in the pavement. The driveway was a common driveway owned by several different parties and the city, and all the defendants filed cross-motions for indemnification and contribution against each other. On remand, the court held that the trial court should direct verdicts against all defendants. Additionally, because the plaintiff was not contributorily negligent, the Fair Share Act, did not shield the defendants from common law joint and several liability. This case is a good reminder to counsel to examine all cross claims against potential third parties, as well as the plaintiff if contributorily negligent. Thanks to Kevin Riley for his contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Call Your Next Witness Podcast - Brian Gibbons Interviews Dan Solinsky of Edelman Krasin & Jaye PLLC May 19, 2021 < Back Share to: Check out the newest episode of the Call Your Next Witness podcast, where Brian Gibbons interviews plaintiff's attorney extraordinaire, fellow Bronx County District Attorney's Office & St. John's University School of Law alum, and all around good guy, Dan Solinsky of Edelman, Krasin & Jaye PLLC. Dan and I discuss our career paths, which began as prosecutors in the Bronx, and led us to where we are now, on "different sides of the aisle" as a plaintiff's and defense attorney, respectively. We also talk trial practice, mediation, client management, "playing nicely in the sandbox" as attorneys, and also, important things like Mets baseball, and whether Jacob deGrom will end 2021 with more hits or wins. Available here: http://ow.ly/osSy50EQvH1 or wherever you download podcasts. We hope you enjoy, and if you're interested in discussing podcast content, or being a guest, please email Brian Gibbons or Georgia Coats. Previous Next Contact

News Experienced Partner Scott A. Lazar Joins Wade Clark Mulcahy LLP’s New Jersey Office February 24, 2026 < Back Share to: Springfield, New Jersey (February 18, 2026) : Wade Clark Mulcahy LLP (WCM), a boutique firm representing insurance and corporate clients in defense and coverage matters nationwide, proudly announces the addition of Scott A. Lazar as a Partner in our New Jersey office. Scott will handle insurance coverage, general liability, products liability, and construction litigation matters throughout New Jersey and New York. His arrival further strengthens WCM’s long-standing presence in the Northeast and enhances our ability to serve clients across state lines. “I look forward to practicing alongside Scott, as we continue to expand and deliver exceptional legal services to clients,” stated Michael Bono, Executive Partner leading from the New York office. Bono remains confident in Scott’s legal expertise, leadership, and strong client relationships, noting that Scott will further support his long-term clients at WCM. Scott added, “I am excited to join WCM and continue serving my clients within a collaborative culture that prioritizes strategy, efficiency, and excellence.” Scott contributes extensive experience representing clients in transportation, construction, and consumer products industries for complex litigation matters. His legal services include coverage analysis and disputes, first-party property claims, indemnification agreements, wrongful death matters, and catastrophic injury matters. Known for delivering practical, cost-effective solutions, Scott focuses on achieving strong results tailored to his clients’ needs. Prior to joining WCM, Scott was a partner in a regional litigation firm handling complex matters in insurance defense and general liability. He graduated in Political Science from the University of Pennsylvania and earned his Juris Doctor from Boston University School of Law. About Wade Clark Mulcahy LLP Wade Clark Mulcahy serves clients across multiple jurisdictions throughout eight offices located in New York, New Jersey, Pennsylvania, Long Island, Florida, Louisiana, and Texas, with one administrative office in England. Our firm consists of trial attorneys that represent insurance and corporate clients, developing strategic solutions that effectively manage risk and bring resolution to complex matters. When we represent our clients, we establish lasting partnerships built on trust, legal excellence, and cost-effective results. Previous Next Scott A. Lazar Scott A. Lazar Partner 862 294 3647 Slazar@wcmlaw.com Contact

News Is Being Free Of Fault Necessary To Be Awarded Summary Judgment On Liability In An Automobile Case? (NY) January 27, 2023 < Back Share to: Though automobile accidents, large and small, are things we try to avoid at all costs, sometimes they do happen. If there is competing testimony in a case as to how a car accident did happen, summary judgment on liability may be ruled out. Recently, in Golovnya v. Artemchenko, 210 A.D.3d, (2d Dep’t November 30, 2022), a defendant, who was awarded summary judgment on liability by the lower court, had it taken away on appeal for failing to establish, prima facie, entitlement to judgment as a matter of law because she did not demonstrate freedom from fault in the happening of the accident. The Court reasoned that proximate causation could only be decided as a matter of law when only one conclusion could be reached from the facts. Here, the Court considered the deposition testimony of the plaintiff and defendant which illustrated conflicting explanations of the accident. Such conflicting explanations pointed to the possibility of more than one proximate cause of the accident, and it is the task of the trier of fact to determine the issue of proximate cause. It was in light of the “conflicting testimony regarding the manner in which the accident occurred” that the defendant failed to eliminate triable issues of fact. Neither party was awarded summary judgment on the issue of liability. This case is a reminder of the importance of the element of proximate causation, comparative negligence, and factual particularity. Please contact John Diffley for questions about this article. Previous Next Contact