Wade Clark Mulcahy LLP

News Uniquely Dangerous Condition at Water Park Can't be Assumed (NY) October 18, 2012 < Back Share to: Anyone who has ever been to a water park appreciates there are a lot of different ways to get hurt. But recently, in Mussara v. Mega Funworks, a New York appellate court held that because the type of dangerous condition was "unique," plaintiff's lawsuit was not barred by the assumption of risk doctrine and could proceed. As the plaintiff exited the water slide, he was thrown across a 50-foot pool and hit the cement on the other side. The water park argued that the plaintiff had assumed the risk of injury when he rode the slide. The park posted a warning sign and the plaintiff admitted that he checked the sign but did not read the warning. Nevertheless, the court ruled against the water park and held that the assumption of risk doctrine does not apply where the dangerous condition posed by the ride is unique and is "over and above the usual dangers that are inherent in riding down a water slide." In this case, the court ruled, the plaintiff had not assumed the risk of being thrown across a pool because there was no evidence that he was aware of that possibility. Indeed, the Court list a number of potential ways that a person might expect to get hurt at a water park, but this wasn't one of them. Rather, the plaintiff only assumed the risk that he would be injured despite the slide working as intended. Thanks to Mendel Simon for his contribution to this post. If you would like further information, please write to mbono@wcmlaw.com     Previous Next Contact

News Plaintiff Doesn't Hold All The Marbles In Determining Venue January 7, 2008 < Back Share to: A case for all geography lovers. In Montesano v. New York City Housing Authority, 2007 NY Slip Opinion 09955, AD and Bronx Co. Index 24323/05, plaintiff incorrectly chose venue when she brought her action in Bronx County claiming that she injured herself while descending an interior staircase in the New York City Housing Authority apartment building where she lives, located at 5480 Broadway in the Marble Hill section of New York City. Having lived there for 18 years, the plaintiff was confident that she was a Bronx resident. As it turns out, plaintiff was duped by her surroundings. The 52 acres of Marble Hill were originally connected to the Borough of Manhattan (coterminous with New York County) until 1885 whereupon the Harlem River Ship Canal was created. Although separated from Manhattan by water and connected to the Bronx, and while bearing a Bronx zip code, and using a Bronx area code, Marble Hill actually remains part of New York County. For this reason, defendant correctly demanded and moved for change of venue that was ultimately granted by the Appellate Division- First Department since the New York Adminsistrative Code section 2-202(1) places Marble Hill with New York County for all purposes. http://www.courts.state.ny.us/reporter/3dseries/2007/2007_09955.htm Previous Next Contact

News Don't Discriminate Against The Unemployed (NY) March 14, 2013 < Back Share to: New York City just passed a law that prohibits employers from discriminating against job applicants on the basis of their unemployment. The law provides that an employer may not advertise that current employment is a requirement for any vacant position or that the employer will not consider an unemployed individual for the job. The law, however, does not prohibit employers from considering professional licensing, experience or training when making hiring decisions. Despite an attempted veto by New York City’s mayor based on concerns over increased litigation by disgruntled employees, the law will take effect in ninety days. Employers now have yet another concern when making hiring decisions and we are likely to see increased employment discrimination litigation. Special thanks to Alison Weintraub for her contribution to this post. For more information, please contact Paul Clark at pclark@wcmlaw.com . Previous Next Contact

News Labor Law Liability Imposed Against Catholic Church (NY) January 3, 2020 < Back Share to: New York’s Labor Law, section 241(6), imposes a nondelegable duty upon an owner and general contractor to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. Ortega v Roman Catholic Diocese of Brooklyn is a prime example of how strict this rule is. In that case, plaintiff was working as a concrete laborer at property owned by Roman Catholic Diocese of Brooklyn. He was injured when the front leg of a three-wheeled compressor gave way, causing a portion of plaintiff’s ring finger to become severed by the bent leg of the compressor. At his deposition, plaintiff testified that the locking mechanism that served to stabilize the front leg and wheel of the compressor had broken about two months before the accident. To remedy it, plaintiff’s boss replaced the broken component with an ordinary screwdriver. The accident occurred when the screwdriver popped out of the locking mechanism as he and coworkers were attempting to the push the compressor up a driveway. The Appellate Division, 2nd Judicial Department, overruled the Kings County trial court’s denial of summary judgment sought by plaintiff. It held that there were violations of the Labor Law, and therefore the owner of the property, Catholic Diocese, was liable for said violations pursuant to Labor Law section 241(6). The fact that Catholic Diocese had nothing to do with fixing the compressor was irrelevant, for the Labor Law imposes a nondelegable duty on landowners to provide a safe working place for workers. Thanks to Mike Noblett for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Visions in the Night: A PA Settlement Wipes Out Years of Precedent. August 21, 2009 < Back Share to: In the case of Klein v. Amtrak , two trespassing teenagers climbed atop a train car parked in a lot owned by Antrak. They suffered serious burns when they got too close to a 12,000-volt wire. The jury found for the plaintiffs (finding them 0% liable) and awarded $24,000,000 in compensatory and punitive damages. During the progression of the case, the court made new law on the "attractive nuisance" doctrine, and the standard of proof required to show that a landowner was aware of a risk because of similar prior accidents. The case has now been settled during the pendency of an appeal. As a condition of the settlement, and with the approval of the district court, all prior decisions were vacated. But for the money, it's as if the case never happened. http://www.law.com/jsp/pa/PubArticlePA.jsp?hubtype=TopStories&id=1202433146538&slreturn=1&hbxlogin=1&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20Most%20Viewed%20Alert&cn=TLI_MOST_VIEWED_ALERT20090821&kw=After%20Settlement%2C%20Opinions%20Erased%20in%20Amtrak%20Case Previous Next Contact

News Condominium Associations continue to be “Residential” Despite Commercial Nature of Some Units. December 1, 2017 < Back Share to: In New Jersey, residential property owners do not owe a duty to maintain public sidewalks abutting their properties, but commercial property owners do. New Jersey courts have consistently followed this dichotomy since 1981, but much litigation has ensued as to what is “residential” as opposed to “commercial.” Courts employ the “predominate use” test to determine whether a property is residential or commercial. In Waldier v. Piper 1 Townhouse Condominium Association, the Appellate Division upheld a trial court’s dismissal of a Condominium Association on summary judgment. In that case, plaintiff alleged that she was thrown from her bicycle and injured due to a defect in a sidewalk adjacent to the condominium complex. The condominium complex consisted of thirteen units, and the Association was a not-for-profit entity. The owners made up the Association. The condominium’s Master Deed contained a restrictive covenant mandating that each unit be used as a private residence only. However, unit owners were permitted to rent units. Discovery revealed that two to four units were held for rent by their owners. Only five of the units were owner-occupied all year. Nonetheless, the trial court determined that the condominium complex was predominately residential and the appellate court agreed. Thanks to Michael Noblett for his contribution to this post.       Previous Next Contact

News "Trivial" Defect in Sidewalk Does Not Constitute a Dangerous Condition February 24, 2011 < Back Share to: In Vasquez v. JRG Realty Corp. et al., the First Department examined a personal injury case in which a plaintiff alleged that she tripped and fell in front of defendants' property and suffered personal injuries. The defendants argued that the supposed defect on which plantiff tripped was a trivial one, in that based upon their measurements, the "defect" was approximately the height of a nickel. In opposition, although plaintiff failed to submit any expert testimony, she testified at her deposition that the defect was approximately three quarters of an inch to one inch. The Court granted defendants' motion for summary jusgment after finding that plaintiff's testimony was speculative (not to mention that plaintiff's account seems to corrorborate the measurements of the defendant's expert). Moreover, the Court found that plaintiff failed to rebut defendants' argument that the defect was trivial. Not surprisingly, the Court does not specficically define what does or does not constitute a trivial defect. As such a determination must be made on a case by case basis based upon the facts. Nevertheless, the Court sets a precedent here in that a defect the size of a nickel or smaller (i.e., a dime or a penny?) may be regarded as a trivial one under similar facts to this case. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01349.htm Previous Next Contact

News Mandatory Mediation Established for Sandy Claims (NJ). February 28, 2013 < Back Share to: NJ’s Department of Banking and Insurance is putting the finishing touches on a mediation program for all Sandy coverage disputes with a value of more than $1,000. The program would be mandatory for home, automotive and commercial insurers, but not flood or surplus lines insurers or risk retention organizations. The costs of the mediation would be borne by the insurer. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News "Any" Means "Any," even in New Jersey May 30, 2012 < Back Share to: The “employee exclusion” of the CGL policy has been upheld by courts throughout the country, and the trend continued in New Jersey in the recent case of Gabriele v. Lyndhurst Residential Community, L.L.C. There, a construction management company hired a subcontractor to install a sprinkler system in a new construction project. The foreman of the subcontractor was killed when he was struck by a pallet that fell from the sixth floor of the building project. The construction management company filed a third party suit against the subcontractor’s insurance company, seeking a declaration that the insurer was required to defend and indemnify the management company as an additional insured under the policy. The insurer argued that two exclusions in its policy applied to this accident: exclusions of claims 1) for personal injuries to “an employee of any insured”; and 2) for any liability for personal injuries that do not arise solely out of the named insured’s work. The trial court decided, on cross-motions for summary judgment, that neither of the exclusions applied, and thus that the insurer was required to provide the coverage sought. On review, the Appellate Division reversed the trial court’s declaratory judgment, citing the first exclusion as the basis for its decision. The court held that an endorsement to the policy clearly stated that the coverage did not apply to personal injury to an employee of any insured arising out of or in course of, or as a consequence of, employment by any insured. Furthermore, the language in the endorsement clearly superseded the original policy language that merely excluded from coverage those claims for personal injury made by “an employee of the insured,” because the endorsement itself stated that it changed the policy. Thanks to Christina Emerson for her contribution to this post. If you would like further information, please write to mbono@wcmlaw.com . Previous Next Contact

News Real Estate Exception to Pennsylvania’s Local Agency Immunity Applies Only When Alleged Conduct or Negligent Act Relates Directly to Condition of Real Propert April 20, 2018 < Back Share to: Under 42 Pa. C.S. § 8541, a school district is entitled to immunity from certain suits. In M.M. v. E. Stroudsburg Sch. Dist. & Jane Doe, the plaintiff tried to assert a real estate exception to the rule, but failed to allege the necessary facts to support the exception. In M.M., students at J.T. Lambert were participating in a fire evacuation drill from the rear of a school bus. When M.M. attempted to exit through the back door, she fell to the surface of the parking lot and injured her ankle. M.M. sued the bus driver School District for negligence. The District filed preliminary objections claiming local agency immunity. M.M. responded claiming the “real estate exception” permitted her claim. The real estate exception, created by 42 Pa. C.S. § 8542(b)(3), states that liability may be imposed on political subdivisions or local agencies, such as a public school district, when the alleged harm was caused by “the care, custody or control of real property in the possession of the local agency.” The exception imposes a standard of liability akin to private landowners on political subdivisions. They are required to maintain real property within their care, custody, or control for the activities it is ordinarily used or for activities that the property is reasonably anticipated to be used. However, the alleged conduct or negligence must be directly related to a condition of the property. In this case, M.M. failed to set forth any factual averments or allegations relating to a defective surface of the J.T. Lambert parking lot. She did not allege any defect, or that it was not suitable for its ordinary purpose. Therefore, the real estate exception did not apply, and the District and its bus driver were entitled to local agency immunity. Thanks to Robert Turchick for his contribution to this post.       Previous Next Contact

News Condo's are not Owners under Labor Law (NY) December 13, 2012 < Back Share to: As CGL insurers are well aware, New York's Labor Law, originally designed to protect construction workers from unsafe practices, often ensnares small property owners with its strict liability conditions. Labor Law § 241(6) imposes a nondelegable duty upon "owners," "contractors" and their "agent" involved in construction, excavation, or demolition work to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. Recently, the New York Court of Appeals ruled that condominiums generally cannot be found liable under New York Labor Law § 241(6). In Guryev v. Tomchinsky, the plaintiff suffered an eye injury while working in the defendants' condominium unit. Guryev sued the condominium under Labor Law, arguing that the condominium was an “owner” of the unit because it owned the land underneath the building. In addition, the condominium entered into an alteration agreement with the Tomchinskys in which the condominium retained many important rights and control over how the work would be performed and contractor choice. Plaintiff further argued that co-operatives are deemed to be "owners" and condominiums should also be deemed owners for public policy reasons. The Court of Appeals, over the dissent of its Chief Judge, ruled in favor of the condominium because the condominium, unlike a co-op, did not hold title to the actual unit in which the injury occurred. Therefore, the condominium could not be an “owner” under Labor Law § 241(6). In addition, the alteration agreement with the Tomachinskys simply reflected the condominium's interest in making sure that the renovations would protect the building and other units and did not grant the condominium the prerogative to ensure that the contractor was using adequate safety precautions. Thanks to Mendel Simon for his contribution to this post. If you have any questions, please write to mbono@wcmlaw.com . Previous Next Contact

News How Timely Is Timely in Removal to Federal Court? (PA) June 12, 2013 < Back Share to: Judge Ludwig of the USDC, EDPA, was recently faced with the question of when removal from state court to federal court is proper. In the case of Alston v. Wal-Mart, Alston commenced a slip and fall lawsuit in the PA Court of Common Pleas, Philadelphia County, a venue that is consistently rated as one of the worst defense venues in the country. The case was originally filed as an arbitration court case and in its affirmative defenses Walmart alleged that plaintiff could not seek damages in excess of $50,000 (the arbitration court’s jurisdictional limit) or $75,000 (the minimum amount required to remove the case to federal court on diversity grounds). As the case progressed, it quickly became apparent that plaintiff’s demand exceeded $75,000. Wal-Mart thereafter removed the case to federal court. Plaintiff’s counsel objected and argued that the removal was untimely as it took place more than thirty days after service of the complaint. Wal-Mart argued that the removal was, in fact, timely because it was not until the plaintiff made it clear that the demand exceeded $75,000 that Wal-Mart was aware of its right to remove the case. Judge Ludwig sided with Wal-Mart. He held that the removal was timely as it was not until the value of the demand was made clear that Wal-Mart was on notice of its to remove the case. So what’s the takeaway from all of this? We suggest that if you have a case in state court which you would otherwise seek to remove to federal court but in which the value of the case does not seem to exceed $75,000, you ask the plaintiff to stipulate to a $75,000 award cap. If the plaintiff refuses, you probably then have the right to remove the case to federal court. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact