News Drivers Have Duty to Yield to Pedestrians in Cross Walks Despite Driver’s Green Light (NY) June 24, 2022 < Back Share to: In Perez v. Bobcar Media LLC and Benny M. Cohen, the Kings County Supreme Court of New York confirmed that a driver of a motor-vehicle has a statutory duty to use due care to avoid colliding with a pedestrian, including yielding to the right-of-way to pedestrians lawfully within a crosswalk despite a driver’s green light. Both parties following discovery moved for summary judgment: the defendant on the grounds that plaintiff’s injuries failed to satisfy the “serious injury” threshold required under New York insurance law, and the plaintiff on the grounds of defendant’s liability. Confronted with plaintiff’s and defendant’s competing medical experts, the Court denied the defendant’s motion for summary judgment because defendant’s medical expert’s statements were conclusory, claiming plaintiff’s injuries were a result of a degenerative disease despite plaintiff, a 24-year-old, never having such symptoms pre-accident. The New York Supreme Court granted plaintiff’s motion for summary judgment on liability upon finding that plaintiff was lawfully walking in the cross-walk when defendant attempted to make a left turn, failed to yield to plaintiff, striking him. Defendant’s failure to yield was a violation of New York Traffic and Vehicle Law rendering defendant strictly liable. Moreover, defendant had a common law duty to exercise care “to see that which he should have seen through the proper use of his senses.” The takeaway of this decision serves as a reminder that a New York driver’s violation of a Vehicle and Traffic law holds an individual strictly liable, meaning regardless of culpability, a defendant will still be on the hook for damages. Thanks to Alexa Schimp for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News NJ Sup Ct Finds Public Entities Attempt To Limit Right To Sue Against Public Policy October 26, 2010 < Back Share to: In Marcinczyk v. State Of New Jersey Police Training Commission, the Supreme Court considered whether an exculpatory agreement that a police recruit executed as a condition of participating in the Somerset County's Police Academy program barred his claims for injuries. On August 5, 2010 in Stelluti v. Casapenn Enterprises, the Supreme Court held that a gym patron of a private health club could not sue for injuries sustained on faulty exercise equipment because she had signed a lawsuit waiver as a condition of her membership. While the Supreme Court enforced the waiver of liability in the private health club setting, it found that a government run institution violated public policy by doing the same thing. The Court found that the agreement signed by Marcinczyk was invalid because it contravened public policy as expressed in the New Jersey Tort Claims Act. The Court found that a public entity cannot condition the provision of a public service on the recipient's execution of a waiver of liability. Please contact Robert Ball with any questions regarding either of these opinons. http://www.judiciary.state.nj.us/opinions/supreme/A-19-09.pdf Previous Next Contact

News Private Land + Public Recreational Use = Immunity (NJ) January 21, 2016 < Back Share to: New Jersey’s Landowners’ Liability Act (“LLA”) provides immunity from certain liability suits to property owners whose land is open for the public’s use and enjoyment along the state’s waterfronts. See N.J.S.A. § 2A:42A. The LLA is New Jersey’s version of a recreation use statue (“RUS”) intended to encourage property owners to provide free public access for outdoor activities such as hunting, fishing, hiking and even simply walking in a waterfront park. Although initially designed to provide incentive to owners of agricultural lands and woodlands to open up their lands to the public without fear of liability, the Act was broadened in 1991 to extend more generally to “premises” on both natural and improved property, even if part of a “commercial enterprise.” In Fujino Niiya v. Grand Cove Master Association, Inc., a condominium association sought immunity in litigation for personal injuries by a woman who tripped and fell on an uneven paver along a walkway adjacent to the Hudson River. Considered a part of New Jersey’s tidal waterways and its shores, the complex was obligated by regulations to maintain 24-hour public access to the riverside walkway. See N.J.A.C. § 7:7E-3:48(e). The Association’s Board President testified that he personally walked on the sidewalk and premises multiple times every day to ensure the public’s safety. The plaintiff testified that it “was a beautiful day,” so she decided to “take a little walk” with her granddaughter along the walkway by the river. In granting summary judgment, the motion judge noted that this was “precisely the situation contemplated by the Legislature” in enacting the LLA. The plaintiff had access to the walkway along the river because of the laws and regulations opening up otherwise private spaces to the public. However, “a critical aspect of that public policy” was “to limit the liability of private developers who provide and maintain access for the public to enjoy the land abutting the Hudson River.” The LLA is a little referenced immunity that offers protection to property owners who provide recreational opportunities to the public. In this case, the judge recognized the policy of encouraging the public enjoyment of such private lands is well-served by enforcing its application. Thanks to Ann-Marie Murzin for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

Juhi R. Patel Law Clerk New York jpatel@wcmlaw.com (332) 345-4186 Professional Experience Juhi Patel is a Law Clerk in WCM’s New York office, where she assists with general liability litigation for various types of claims. Her work involves legal research and drafting litigation documents in support of insurer’s defense and indemnification obligations. As a law student, Juhi externed in legal departments across different industries. She served as a legal intern at the in-house legal departments of a gene therapy company, Spark Therapeutics, Villanova University’s Office of the Vice President and General Counsel, and a multi-media sports and entertainment company, Playfly Sports. Prior to law school, Juhi worked as a legal assistant at a personal injury firm in Somerville, NJ. Honors and Distinctions Villanova Law Dean’s Merit Scholar Professional Activities Villanova Law NovUs Young Alumni Board, Member News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Villanova University Charles Widger School of Law B.S. in Exercise Science & Sports Studies, Rutgers University, cum laude Bar Admissions

News Judicial Deference in NJ? April 9, 2012 < Back Share to: In law school, one is taught that if two judges are of equal rank, the one cannot overrule the other on the same issues in the same case. Yet the practice of law sometimes reveals contrary results. In the case of Little, et al. v. KIA Motors, New Jersey’s appellate division was faced with the following fact pattern arising out of a class action consumer fraud case. In brief (and out of respect the opinion talks about the “first trial judge” and the “second judge” without using names), in November 2008, the first judge issued various rulings (which are not essential to this blawg post) relevant to Kia’s request for post-trial relief. In August 2011, the second judge overruled the first trial judge’s orders and issued new rulings that contradicted the first judge’s orders. The instant appeal resulted. The appellate division reversed the second judge and reiterated that “decisions of law made in a case should be respected by all other lower or equal courts during the pendency of that case.” Good news for litigants and their insurers who count on finality in litigation. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Don’t Forget to Turn On the Lights . . . PA Supreme Court Highlights New Exception to Sovereign Immunity May 6, 2021 < Back Share to: In an April 28, 2021 opinion, the Pennsylvania Supreme Court held that the Commonwealth of Pennsylvania cannot claim sovereign immunity where a dangerous condition, caused by poor lighting, exists on its property. The Pennsylvania Supreme Court’s decision in Wise v. Huntingdon County Housing Development Corporation, et al. overturned a Commonwealth Court’s contrary decision. Plaintiff, Shannon Wise, filed a negligence action against the County Housing Authority claiming she tripped and fell because of “insufficient lighting.” Defendants filed motions for summary judgment, arguing that sovereign immunity barred Wise’s claims. Defendants conceded in their motions for summary judgment that the only potentially applicable exception to sovereign immunity was the “dangerous condition” exception, where the State will not be immune from liability when a dangerous condition originates from its property. Defendants argued further that because there was no defect in the sidewalk, no dangerous condition derived from their property, and therefore, Wise’s claims were barred. Defendants argued that the poor lighting was simply a result of nighttime darkness. However, the court saw things differently. The Pennsylvania Supreme Court found the “dangerous exception” to sovereign immunity applied because the poor lighting, caused in part by certain placement of a pole by the State, derived from State property and was not just typical nighttime darkness. The Court reasoned that for the “dangerous exception” to apply, the condition need not be on State property; rather, it need only be contiguous to State property and the State need to have known, or should have known, of its existence. It focused on the exception’s requirement that the condition derive from State property. Here, the poorly lit sidewalk (dangerous condition) derived from the State’s poor placement of the outdoor lighting fixtures. As such, the Pennsylvania Supreme Court conducted a more expansive reading of the exceptions to sovereign immunity, where a dangerous condition need not be clearly connected to the land itself. Thanks to John Lang for his contribution to this post. Should you have questions, please feel free to contact Tom Bracken. Previous Next Contact

News PA Continues to Take a Hard Line on Defaults. September 14, 2009 < Back Share to: In many states, a pre-answer default is of little moment and is easily vacated. Not so in Pennsylvania! As a trial court (in Firedex of Butler, Inc. v. Dicarjust has just confirmed, in PA, to vacate a default you need both an excuse for the default and a meritorious defense. In the absence of such proof, even if there is insurance, the default will not be vacated. Litigants and insurers should thus be equally vigilant. http://www.palawweekly.com/getarticle.aspx?id=30117 Previous Next Contact

News Making A Federal Case Out Of A $462 Claim December 14, 2007 < Back Share to: An insurer removed a suit to Federal court seeking recovery of a $462 dental bill by an insured. Plaintiff, an attorney, recently won a $45 million settlement from the same insurer. The insurer, fearing a new class action suit, retained a high-powered law firm, and removed the case to Federal court. http://www.law.com/jsp/article.jsp?id=1197540284638 Previous Next Contact

News NY Court Requires No Specificity Of Hazardous Condition In Premises Liability Case April 7, 2023 < Back Share to: In Diaz v. SCG 502, LLC, 2023 NY Slip Op 01779 (2d Dept. 2023), plaintiff alleged serious injuries from a slip and fall on an interior staircase in an apartment building. NY law permits dismissal of slip-and-fall cases if “the plaintiff did not know what caused the fall" (Lamour v. Decimus, 118 AD3d 851, 851; see Aleman v 760 8th Ave. Rest., Inc., 187 AD3d 1106, 1106; Kerzhner v. New York City Tr. Auth., 170 AD3d 982, 983). "[A] plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation" (Rivera v. J. Nazzaro Partnership, L.P., 122 AD3d 826, 827; see Madden v. 3240 Henry Hudson Parkway, LLC, 192 AD3d 1095, 1096). However, the New York appellate court recently let a plaintiff off the hook At her deposition, plaintiff testified she slipped and fell on a “wet step,” but did not know the precise type of liquid. While trial court granted summary judgment, the Second Department overturned that decision reasoning that the precise type of liquid was inconsequential to her claim of negligence of injury caused by a hazardous substance on a public space. Here, the defendant failed to establish, prima facie, that the plaintiff did not know what caused her to fall. “Contrary to the defendant's contention, the plaintiff's alleged inability to identify the "precise nature of the wet substance upon which she allegedly slipped and fell cannot be equated with a failure to identify the cause of her fall (Burrus v. Douglaston Realty Mgt. Corp., 175 AD3d 461).” The Second Department’s determination shows that a slip and fall on a wet surface does not require the claimant to specifically identify the hazardous substance that caused her to fall. Courts will allow a plaintiff to have her day in court so long as she can testify, generally, as to what caused her to fall in a premises liability claim. Thanks to Raymond Gonzalez for his contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News The Weather Outside is Frightful (NJ) May 9, 2019 < Back Share to: In Dixon v. HC Equities Associates, LP, the plaintiff tripped and fell on an icy sidewalk while walking to her state-issued car. Although she wore boots and walked cautiously, her feet slipped on at least one inch of snow. At her deposition, she confirmed the snow started after she arrived at work that day and continued until her fall. The plaintiff sued the defendant owner for negligence, arguing HC Equities Associates, LP breached its duty of care in failing to remove snow and ice on the facility’s sidewalk, which proximately caused her injuries. After the completion of discovery, the defendant owner moved for summary judgment. The argument was simple: there was no breach of a duty of care to the plaintiff because its duty to act in a reasonably prudent manner to remove or reduce the hazard (snow and ice) did not start until a reasonable time after the snow stopped. After oral argument, the trial court agreed that no rational jury could find defendant was negligent because the plaintiff fell during an ongoing snowstorm. Accordingly, the trial court granted summary judgment as a matter of law. The plaintiff appealed, arguing the duty should be expanded. At common law, residential and commercial property owners did not have a duty to maintain public sidewalks abutting their premises free from snow and ice. Skupienski v. Maly, 27 N.J. 240, 247 (1958). An exception to maintain abutting sidewalks was carved out for commercial landowners in Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 149-50 (1981), which Mirza v. Filmore Corp., 92 N.J. 390, 395 (1983) extended to snow and ice removal. A commercial owner’s responsibility therefore arises only if, after actual or constructive notice, he has not acted in a reasonably prudent manner under the circumstances to remove or reduce the hazard.” Mirza, 92 N.J. at 395. On appeal, the Appellate Division reaffirmed the long-upheld principle that commercial property owners are not liable for clearing snow during a snowstorm. See Bodine v. Goerke Co., 102 N.J.L. at 642-43 (E. & A. 1926) (holding that a property owner could not be liable for ailing to remove slush or ice from the entrance to a store while the storm was still ongoing). After noting it was undisputed that the snowstorm was ongoing when the plaintiff slipped and fell, the defendant was not obligated to remove snow and ice until the precipitation stopped and it had a reasonable time to remove it. Therefore, the trial court’s grant of summary judgment was affirmed. Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News GC Not Liable Where Equipment Selected, Supplied and Controlled by Sub (NJ) November 21, 2012 < Back Share to: Construction work exerts competing pressures on its participants. First, there's pressure to get the job completed as soon as reasonably possible; after all, time is money. On the other hand, quality work takes time and no owner or investor wants to accept work that is inferior or shoddy. Finally, safety is a significant concern, not solely because of a genuine concern for the safety of the workers, but also because accidents cause injuries and injuries result in claims, i.e. money. When a work related accident blossoms into a lawsuit, a key question is who had a duty of care to the injured worker? The owner? The general contractor? The subcontractor who employed plaintiff? According to the recent New Jersey Appellate Division decision of Tarabokia v. Structure Tone, the general contractor has no duty of care to the injured employee of a subcontractor under the circumstances of that case. In Tarabokia, the general contractor hired a major electrical subcontractor for an office building construction project. The general contract with the owner required the GC to remain responsible for overall jobsite safety. Consistent with industry practice, the GC hired an electrical subcontractor to perform the electrical work pursuant to a series of purchase orders, none of which made specific provision for an allocation of safety responsibilities. The plaintiff was required to use a specialized powder-activated power tool that drove anchors into concrete or steel. The Sub arranged for its employee to be trained on the proper use of the tool at the job site and required plaintiff to attend weekly safety meetings. Unfortunately, the plaintiff used the tool without wearing special anti-vibration gloves, leading to a serious polyneural compression injury. Plaintiff could not directly sue his employer because of New Jersey's worker compensation bar so his next best target was the GC. Did the GC have a duty of care to the plaintiff to ensure his safety on the jobsite? “No,” according the Tarabokia court. First, there was no contract between the GC and Sub that imposed an obligation on the GC to assume any safety obligations for the Sub’s employees. Second, the GC was unaware of the specific danger posed by the improper use of the highly specialized tool being used by the plaintiff. Third, the GC did not create the condition that caused plaintiff’s injury. Fourth, the danger posed by the tool was not readily apparent to the GC. Last, the Sub assumed control over the manner and means of plaintiff’s work and seemingly understood its obligation to accept overall responsibility for plaintiff’s work. The roles and responsibilities of the multiple parties working at a construction site are not always clear, particularly with respect to worker safety. Tarabokia confirms that the GC on the jobsite is not the presumptive safety supervisor of last resort, particularly for equipment selected, supplied and controlled by a subcontractor . If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com . Previous Next Contact

News Painful Verdict for Pain and Suffering (NY) July 23, 2020 < Back Share to: The Bronx has a reputation for plaintiff-friendly verdicts, and the case of Cabrera v Port Auth. of N.Y. N.J. (2020 NY Slip Op 03993) did not disappoint. Plaintiff, an employee at a Dunkin Donuts franchise at LaGuardia Airport, was involved in an accident with a salt spreading truck in the parking lot during a snowfall. After a jury trial, she was awarded future damages for only a period of three years, yet was awarded $12 million dollars. Fortunately for the defense, the First Department found many instances of reversible error warranting a new trial. First, the court truncated proof on whether the parking lot was public or private, which directly impacted whether the jury should been charged with the recklessness standard set forth in NY VTL §1103 or VTL §1163. This alone was enough for a new trial, but the court had made a trifecta of mistakes. The second error came in precluding defendant’s accident reconstruction expert from testifying. The Appellate Division found the lower court’s in limine inquiry of the expert concerning scientific studies was irrelevant to the subject of his testimony. Additionally, any deficiencies in the expert disclosure could have been remedied by limiting the testimony, not precluding it. Finally, a retrial on damages was necessary because the defense medical expert was improperly barred from testifying on the issue of whether plaintiff’s injuries were traumatically induced and whether the surgeries were necessary and appropriate. Any one of these errors would warrant a new trial, but all three, combined with a future damages award of $12 million dollars for a period of only three years, certainly required a new trial. This case confirms that unsupported and excessive jury verdicts will be scrutinized by the court. Thanks to Mehreen Hayat for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact