Wade Clark Mulcahy LLP

News Experts Are Not Always Right - Or Accurate November 7, 2012 < Back Share to: In Gibbs v. 3220 Netherland Owners Corp., the First Department recognized that just because an expert claims a building code was violated, it does not necessarily mean that there was a code violation, or that the expert is even assessing the correct code. The First Department upheld the trial court’s decision that the stairs on which Gibbs allegedly slipped and fell (leading from the first floor to the lobby) were not "exit" stairs within the meaning of two building code provisions. Thus, the expert’s opinion that the stairs violated relevant codes to “exit” stairs, failed to raise an issue of fact. The court further disparaged the expert by recognizing that an opinion regarding the absence of slip resistant material lacked probative value because the expert failed to identify any minimum requirement of non-skid material. The positive defense lesson to be learned is that simply because an expert is retained, it does not mean that a question of fact, sufficient to defeat a motion for summary judgment, will automatically be created. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07196.htm   Previous Next Contact

News Vague Policy Language Opens the “Floodgates” to Challenge Disclaimers (NJ) May 2, 2019 < Back Share to: In a recent decision by the New Jersey appeals court, the Court ruled that a homeowner disputing their insurance company’s decision to disclaim coverage for damage caused by a burst municipal water main was not barred by a water damage exclusion in his homeowner’s insurance policy. A three Judge panel reversed the trial court’s decision to grant Massachusetts Bay Insurance Co. summary judgment on plaintiff’s, Adrian Sosa, claim that he was wrongfully denied coverage for damage to his home caused by a burst municipal water main. Specifically, the Court held that the trial court improperly ruled that the plain language of the water damage exclusion in plaintiff’s policy, which excludes coverage for damage caused by surface water or by flood barred plaintiff’s claim seeking coverage. The decision indicates that the exclusion, as it was written into the policy, does not bar all claims from damage caused by water, only the types of damage highlighted in the policy regarding surface water and flooding. The Court further stated that neither of those categories fit plaintiff’s claim. Plaintiff’s claim indicates that his house was flooded, however, that did not mean the water was a flood as reasonably defined. The Court defined a flood as a general inundation and must affect a wide area, which is not what plaintiff claimed to have occurred. The Court noted “This definition is consistent with the view of other jurisdictions that a ‘flood’ connotes a great inundation or deluge affecting a broad area, and not the kind of localized water damage that a water-main break causes.” Thanks to Jon Avolio for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Electrician's Fall Not Covered By New York's Labor Law April 21, 2009 < Back Share to: In Romeo v. Property Owner (USA) LLC, et al., plaintiff, an electrician, was injured when, while walking on a raised computer floor, he stepped on a floor tile that suddenly dislodged, causing his right foot to fall through the opening and strike the concrete sub-floor 18 inches below. Plaintiff sued the property owner and general contractor, alleging violations of Labor Law 200, 240(1), and 241(6). The Supreme Court, New York County granted the defendants' motion to dismiss. The Appellate Division, First Department found that plaintiff's injury did not involve an elevation-related hazard, as defined by 240(1). Plaintiff's 200 claim (common law negligence) was unsupported by evidence that the owner and general contractor either had notice of the tile condition or that they directly controlled and supervised the electrical work. Plaintiff testified that his work instructions came only from a supervisor who was also employed by the electrical subcontractor. As to the 241(6) claim, the First Department found that the Industrial Code 23-1.7(b)(1) (hazardous openings) provision relied upon by plaintiff was inapplicable. The opening in question was not of significant depth and size to warrant the protection of the provision. Plaintiff's reliance upon Industrial Code 23-1.7(e)(2) (work area debris and tripping hazards) was also held to be inapplicable because he was not injured as a result of tripping over debris, dirt, tools or materials. Ultimately, the First Department unanimously affirmed the lower court's ruling in favor of the defendant. Thanks to Robin Green for her contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_02848.htm Previous Next Contact

News US to Increase E. Coli Tests in Some Raw Beef Products. June 1, 2012 < Back Share to: Effective next week, the US Agriculture Department will be expanding its testing for E. coli in some (but not all) raw beef products. The new tests will test for six additional strains of E. coli that produce the so-called Shiga toxin — O26, O45, O103, O111, O121 and O145. They will also continue to test for the better known E. coli — as well as the better known O157:H7. This new testing paradigm follows on the heels of a report that the FDA denied a petition by the Corn Refiners Association to change the name of the sweetener high-fructose corn syrup to corn sugar on nutrition labels. A sign of governmental toughening, or just a momentary blip? We should get a better sense when (if?) the new FSMA draft regulations are finally posted for comment. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Another Philadelphia Jury Awards $1.5 Million for Slip and Fall --Notwithstanding Inconsistent Accident Footage April 21, 2016 < Back Share to: A jury in Philadelphia County jury recently came back with a verdict in favor of a grocery store customer who fractured her wrist in a slip and fall. In Spencer v. Bottom Dollar Food, the plaintiff, a 51 year old woman, fell on a sticky, wet floor. As a result of the injury, plaintiff required surgery to insert plates and screws. A store employee could be seen on video cleaning the location of the fall subsequent to the fall; however, the video also shows other customers walking over the area without incident. Additionally, plaintiff initially told store managers she slipped on a grape, which was inconsistent with the video. Plaintiff demanded $100,000; however, after a three day trial, the jury issued a verdict in the amount of $1.5 million. This verdict was despite medical expenses only in the amount of $8,332. As a result of this award, Bottom Dollar was forced to file a motion for a post-trial remitter, calling the jury’s award “grossly exorbitant.” This verdict is a surprising result for an otherwise mundane case. This award is far above the special damages as established in the case, and is reflexive of the sometimes unpredictable and capricious nature of juries. Overall, this verdict represents a worst case scenario. It remains to be seen how the court rules on the post-trial motions. Thanks to Konrad Krebs for his contribution to this post. Previous Next Contact

News Court of Appeals finds Question as to Constructive Notice Despite Security Footage (NY) October 13, 2017 < Back Share to: Premises cases can hinge on notice of an allegedly defective condition, and an eventual accident. For defendant property owners, proving that you did not create or have notice of the dangerous condition is a continuous uphill battle. It is even more difficult when the condition is water or debris that is transient and could manifest at any time. Under such circumstances, a defendant property owner must show when the area was last inspected and/or cleaned on the date of the accident to establish that the condition was not present for a sufficient period of time to constitute constructive notice. In Parietti v. Wal-Mart Stores, Inc., 140 A.D.3d 1039, 34 N.Y.S.3d 474 (2d Dept. 2016), reversed (Sept. 14, 2017), plaintiff slipped and fell on a wet spot near an ice machine inside a Wal-Mart store. Wal-Mart submitted affidavits from store employees who were working in the area at and around the time of the accident and surveillance footage which showed a Wal-Mart employee constantly walking and inspecting the area where the accident occurred. The Appellate Division, Second Department, reversed the trial court’s initial denial of the defendants motion and found that defendant Wal-Mart established that the alleged wet condition was not present for a sufficient period of time for Wal-Mart’s employees to discover and remedy it prior to the accident. This was supported by plaintiff’s own testimony that she did not see the water when she initially walked in the area. Thereafter, plaintiff sought leave to appeal to the Court of Appeals. The Court of Appeals heard the case and concluded that despite the evidence presented, a question of fact exists as to the length of time the water was present and if it were long enough that Wal-Mart should have discovered and remedied the condition. While the Court did not elaborate, it is possible that the footage actually hurt Wal-Mart’s position in that the area was constantly inspected so the condition, should have been noticed and cleaned immediately. This decision highlights the difficulty in obtaining summary judgment on a slip and fall case for a defendant. It is even more difficult when the defendant does not have footage or a witness to testify about when the area was last inspected or cleaned on the date of the accident. We expect Parietti to be widely cited by the plaintiff''s bar in summary judgment motion practice going forward. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Tragedy At CitiField Does Not Create An Unreasonable Duty To The Property Owner (NY) March 11, 2022 < Back Share to: Antonio Narainasami, decedent, and his friends attended a New York Mets baseball game at Citi Field, and like many New York Mets fans, they decided to leave the game early by the 8th inning, and headed toward the escalators. The escalators had been turned off at the end of the 7th inning and barricades had been placed to prevent patrons from walking down the escalators and redirected them to the exit ramps. Decedent and his friends decided to walk down the “stopped” escalators, and unfortunately during their descent, the Decedent fell down 50 feet and died. Plaintiff’s administrator sued the New York Mets alleging they breached a duty to maintain the safety of public patrons on its property. However, the property owner was granted summary judgment and plaintiff appealed. "Landowners generally owe a duty of care to maintain their property in a reasonably safe condition, and are liable for injuries caused by a breach of this duty." (Henry v. Hamilton Equities, Inc., 34 N.Y.3d 136). The court also stated, “where members of the public are invited onto the premises, the owner has 'a nondelegable duty to provide the public with a reasonably safe premises and a safe means of ingress and egress'" (Cox v. 118 E. 60th Owners, Inc., 189 A.D.3d 1169, 1170) The court reiterated the the scope of a landowner's duty extends to maintaining its property "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" but "there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous". A stationary escalator is not inherently dangerous. (see Adamo v. National R.R. Passenger Corp., 71 A.D.3d 557, 558; Schurr v. Port Auth. of N.Y. & N.J., 307 A.D.2d 837, 838; see also Roberts v. Old Navy, 134 A.D.3d 1088; Jaikran v. Shoppers Jamaica, LLC, 85 A.D.3d 864, 867). The Second Department affirmed the trial court’s ruling holding that defendants submitted evidence that the escalators were not defective, and plaintiff failed to offer any evidence demonstrating defendants’ failed to comply with applicable statutes and regulations concerning the escalators. Plaintiff further argued that defendants failed to take reasonable precautions against foreseeable dangers. However, the court opined that there was little else the stadium personnel could have done, other than placing security personal in front of every escalator egress, which would have been an “unreasonable burden”. Plaintiff alleged the stadium failed in their duty to provide a safe means of ingress and egress for the public, but the Second Department held that defendants demonstrated the barricades and directing patrons to the exits ramps with announcements and security personnel was sufficient to satisfy the duty. This case reiterates non-delegable duties by landowners over the public patrons that come upon their property. While a property owner who sees high-traffic events and a high volume of public patrons must ensure that there are several safe and approachable entrances/exits for the patrons, they also must be wary of unforeseen dangers and demonstrate they have done everything reasonable to mitigate that danger to the public. Moreover, the property owner must maintain security personnel, clear signs, and barricades to prevent public patrons from approaching un-safe or undesignated areas on the property. Thanks to Raymond Gonzalez for contribution to this post. Should you have any question, please feel free to contact Tom Bracken. Previous Next Contact

News No Coverage If No Nexus Between Injury And Claimed Negligent Maintenance April 1, 2009 < Back Share to: In the recent decision of Penn National Ins. Co. v. Costa, the New Jersey Supreme Court held that in order for an injury to arise “out of the maintenance, operation or use of a motor vehicle” there must be a substantial nexus between the injury and the allegedly negligent maintenance, operation or use of the vehicle. In Costa, the mechanic plaintiff slipped and fell on his employer’s icy driveway and struck his head on a tire jack that was being used to change a flat tire. The plaintif was not involved in the tire repair at the time of his accident. Thus, the Court found that there was no substantial nexus between the plaintiff’s injuries and the allegedly negligent maintenance of the motor vehicle. Consequently, the automobile insurance policy did not provide coverage for the claim. Thanks to Claudia Condruz for her contribution to this post. http://www.judiciary.state.nj.us/opinions/supreme/Supreme%2008.pdf Previous Next Contact

News Advice to NJ Jurors: Don't Talk on the Elevator March 10, 2010 < Back Share to: In a recent criminal trial in New Jersey, Police Officer Fine testified on behalf of the State. After he concluded his testimony -- and right before closing arguments -- the officer encountered one of the jurors on the courthouse elevator. The juror told the officer "you did fine." He then added “the defense lawyer was kind of crazy" (according to the juror) or "defense attorneys can be a__holes" (according to the officer). The jury convicted the defendant of cocaine possession shortly thereafter. At some point during deliberations, the police officer reported his conversation to the prosecutor, who then reported this to the judge. The judge conducted a hearing on the issue, and determined the juror exhibited a bias he did not reveal during voir dire, and further, failed to follow the court's instructions to refrain from forming any opinions or reaching any judgment about the evidence until after the case had concluded and the jury had been charged on the law. The Court declared a mistrial, vacated the conviction, and granted the defendant a new trial. The Appellate Division affirmed the decision, agreeing that the juror improperly failed to disclose his prejudicial views during voir dire. Typically, jurors say whatever they can during voir dire in an effort to get excused from a jury. It seems like this juror had a big mouth but bad timing. If you would like further information about this post, please contact Mike Bono at mbono@wcmlaw.com http://www.leagle.com/unsecure/page.htm?shortname=innjco20100302280 Previous Next Contact

News Property owner has a non-delegable duty? Not when an independent contractor is involved in NJ. January 12, 2012 < Back Share to: When faced with a potential verdict against an uninsured construction manager, the plaintiff’s attorney tried to outflank the property owner with legal maneuvers to no avail. In Onda v. Ingegneri, a subcontractor’s employee was injured on a worksite while making a delivery. The worksite was a kitchen renovation project at an Inn. The owners had retained a construction manager for the large renovation project. However, that manager turned out to be uninsured. On the eve of trial, the plaintiff’s attorney realized the very real potential that a verdict might be rendered against the construction manager but leave his client without remedy. Thus, he sought to pin liability on the owners under the theory of non-delegable duty to maintain the premises for business invitees that is normally placed on an owner or occupier of land. To this end, the plaintiff sought to bar the owner from pursuing its cross-claim against the contractor. He also dismissed his claims against the contractor and then filed a motion to make a claim against the owners for negligent hiring of an uninsured contractor. The problem with the plaintiff’s strategy was that generally, one who engages an independent contractor is not liable for that party’s negligence in the performance of the contract unless the owner retains control of the manner and means the work is performed, the contractor is incompetent, or the activity involved is a nuisance. The court denied the plaintiff’s motions. First, the court recognized the owners’ right to pursue a cross-claim against their contractor. Second, the court rightly expressed concern that the motion to amend would entail presenting insurance information to the jury, something that is not permitted under our evidence rules due to potential for prejudice. Moreover, coming on the eve of trial, the court used its discretion to preclude a completely new theory against the defendants. At trial, the jury placed no fault on the property owner and divided liability between the plaintiff (31%) and construction manager (69%). The appellate division affirmed. See Onda v. Ingegneri, http://www.judiciary.state.nj.us/opinions/a5826-09.pdf For more information, contact Denise Ricci at dricci@wcmlaw.com Previous Next Contact

News Updated Broker Liability Statutes in New Jersey, But No Alarming Changes (NJ) May 9, 2019 < Back Share to: The New Jersey legislature has recently enacted amendments to N.J.S.A.17L22A-26 and N.J.S.A.2AL53A-27, effective May 13, 2019. These amendments involve an update to the Affidavit of Merit Act as well as an update to language relating to insurance producers. As explained below, however, these updates have very little, if any, impact of broker liability in New Jersey. First, the Affidavit of Merit (AOM) Act, which requires an affidavit of merit stating that in reasonable probability professional performance fell outside an acceptable standard, was slightly altered. As it relates to brokers, the AOM Act now requires that the affiant be licensed in both the current state and have practiced in the field for the five years immediately preceding the date of the occurrence. This is in direct contrast to the requirements for other categories of licensed persons which only requires an affiant to be licensed (in any state) and have practiced for at least five years (without the requirement of those five years immediately preceding the date of the occurrence). Significantly, this amendment only applies to the author of the affidavit and not the professional expert who is actually testifying at trial. Second, language relating to insurance producers has been updated to include the following: [A]n insurance producer shall exercise ordinary and reasonable care and skill in renewing, procuring, binding, or placing property and casualty insurance coverage … requested by an insured or prospective insured … [and] this section shall not limit or exempt an insurance producer from liability for negligence … or limit or prevent an insurance producer from asserting any defenses available at common law. Prior to this amendment, broker liability standards were set by Aden v. Fortsch, 169 N.J. 64 (2001). Under Aden, the insurance brokers owe a duty or obligation to have and to use a degree of skill and knowledge which insurance brokers of ordinary ability and skill possess and exercise in the representation of a client. This standard should be used to judge insurance brokers in their placement and advise as to insurance policies. N.J.S.A.2AL53A-27 also stated that if the conduct upon which the cause of action is based involves the wrongful retention or misappropriation of any money that was received by the insurance producer as a premium deposition or as a payment of a claim, that insurance producer is liable under the standard imposed on fiduciaries. However, the responsibility of a fiduciary standard is not new to insurance producers. Rather, the amendment only restates the known legal obligation of a fiduciary and has no impact on the “ordinary and reasonable care and skill” standard, as expressed in Aden. Specifically, Aden states the following: That rule [that the conduct of a client in a professional malpractice claim is relevant only if the conduct of said client affirmatively impedes the professional in his or her performance] is premised on the heightened responsibilities of professionals in this State. Otherwise, the fiduciary relationship between the professional and the client may be undermined and professionals may be allowed to escape liability for their malpractice. As such, the inclusion of a “fiduciary standard” more or less reflects the law already set out in Aden. As a result, upon review of these two amendments, it is clear that no real changes have occurred to broker liability law in New Jersey. Thank you to Zhanna Dubinsky for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Intentional Wrong Exception to the Workers’ Compensation Bar Not Available to Third-Party Tortfeasors (NJ) October 23, 2020 < Back Share to: The Appellate Division of the Superior Court of New Jersey recently held that the “intentional wrong” exception to the workers’ compensation bar was not available to a third-party tortfeasor and remained limited only to the injured employee as an election of remedies. Although an unpublished opinion, the court’s decision is important because it further limits the claims that can be brought against employers after workplace incidents. In Gonzalez v Laumar Roofing Company Inc v. Guiliano Environmental, LLC, the plaintiff filed a claim for personal injuries sustained while performing roofing work. Gonzalez initially sued only the general contractor of the project, Laumar, as a defendant. No claims were brought against his employer, Guiliano as he had previously filed for and received workers’ compensation benefits from Guiliano pursuant to the Workers’ Compensation Act, N.J.S.A. 34:15-1. Laumar subsequently filed a third-party complaint against Guiliano, claiming that Gonzalez’s injuries were caused by an “intentional wrong” Guiliano committed. While an employee’s recovery after a workplace incident is generally limited to workers’ compensation benefits, the “intentional wrong” exception permits employees to file claims against their employers where the employer, or fellow employee, caused the injuries “intentionally” as defined by the court. An intentional wrong occurs where it is a substantial and/or virtual certainty that an injury will occur because of the employer’s conduct. In Gonzalez, Laumar tried to avail itself the “intentional wrong” exception often used by plaintiffs to bring claims against their employers after receiving workers’ compensation benefits. The court, however, held that the “intentional wrong” exception was only available to plaintiffs—not third-party tortfeasors. The court reasoned that in codifying the “intentional wrong” exception, the legislature sought “to provide an election of remedies only for the injured employee and his or her representatives.” The court further articulated that the Workers’ Compensation Act broadly protects employers. It referred to its precedent as guidance, in which the Appellate Division has only allowed third-party tortfeasors to seek indemnification in limited circumstances. Although limiting avenues of recovery for third parties in workplace incidents, the court noted that the decision only applies to cases where the employee does not allege an “intentional wrong” against his or her employer. The court did not offer opinion on whether a third-party tortfeasor could bring claims under the “intentional wrong” exception where the employee also alleges an “intentional wrong” on behalf of the employer. Thanks to John Lang for his contribution to this post. If you have any questions or comments, please contact Thomas Bracken. Previous Next Contact