News The Unpredictable Nature of Pennsylvania Products Law March 29, 2013 < Back Share to: Products liability law in Pennsylvania has become increasingly unpredictable over the years. The unpredictability, however, may finally be coming to an end. The Pennsylvania Supreme Court has recently granted allocator in Tincher v. Omega Flex where many predict the Court will finally rule on whether the strict liability analysis of Section 402A of the Second Restatement will be replaced by the Third Restatement. The Third Circuit has twice opined that the state Supreme Court is likely to adopt provisions of the Third Restatement, yet the Court has consistently failed to directly address this issue. If the Court does adopt the Third Restatement, this will mean a change in Pennsylvania products law. Currently, the Second Restatement focuses its analysis on the intended user and that user’s intended use of a product. The Second Restatement also does not include the concept of negligence. Conversely, the Third Restatement focuses its analysis on the foreseeable risk of harm of a product and whether an alternative design could have minimized or eliminated these risks. The Third Restatement also introduces the concept of negligence into the analysis. There are diverging opinions on whether the adoption of the Third Restatement would benefit plaintiffs or defendants more. Some speculate the Third Restatement would be more favorable to defendants as it requires the plaintiff to provide additional proof as compared to the Second Restatement. Others note the Third Restatement would benefit plaintiffs, specifically the injured bystander, as they are not intended users of a product a key portion of the Second Restatement’s analysis. However, regardless of the potential benefits to either plaintiffs or defendants, if the Court does definitively rule as to which Restatement applies; this will offer some much needed clarity to Pennsylvania products law. Special thanks to Colleen Hayes for her contribution to this post. For more information, please contact Nicole Brown at nbrown@wcmlaw.com .   Previous Next Contact

News Creative Pleading In PA Requires A Duty To Defend September 30, 2022 < Back Share to: In Siehl v. City of Johnstown, et al., the plaintiff was convicted of murder and was incarcerated for twenty-five years. The plaintiff alleged that, during his period of incarceration, the defendant city and county withheld exculpatory evidence and produced false disclosure statements. After multiple hearings, the Court determined that the defendant officers were untruthful and hid exculpatory evidence. The plaintiff was thereafter free. The plaintiff therefore sought damages for wrongful imprisonment, loss of freedom, economic loss, and critically, exposure to physically harmful prison conditions (e.g. a bodily injury). The defendant city and county thereafter added their insurance carrier to the action with a third-party complaint. The third-party defendant insurer issued an insurance policy to Cambria County, Pennsylvania. The policy in question included general liability coverage and law enforcement liability coverage that extended to cover damages because of “injury, sickness, disease, disability, shock, mental anguish, mental injury and humiliation” as well as false imprisonment, malicious prosecution, and deprivation of constitutional rights. The Eastern District began its analysis by citing the foundational pillars of insurance coverage law in Pennsylvania: the insurer's duty to defend is broader than the duty to indemnify and the duty to defend arises whenever an underlying complaint may potentially come within the insurance coverage. The insurer argued that it owed no duty to defend the claims that were derivative of the initial malicious prosecution. The court disagreed. Concluding that the allegations in the lawsuit would, if true, be covered by the policy, the Eastern District concluded that “under the legally appropriate interpretation/evaluation of the applicable language at issue, [the insurer] owe[d] a duty to defend” partially because of the allegations in the complaint concerning a bodily injury caused by an occurrence. Thanks to Jason Laicha for his contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Pennsylvania’s Long Arm Statute Keeps Connecticut Company in PA (PA) September 27, 2019 < Back Share to: The PA Superior Court recently ruled on an issue concerning Pennsylvania’s jurisdiction over a Connecticut corporation based on its business dealings with a Pennsylvania-based software company. In Delta Health v. Companions, 2019 PA Super 266, the Court upheld the trial court’s overruling of Companions’ preliminary objections arguing lack of personal jurisdiction. Companions lodged the preliminary objections in response to Delta’s complaint alleging Companions’ failure to pay for Delta’s processing of software to assist in Companions’ health care business. Companions argued that it was a Connecticut corporation that is only registered in Connecticut and provided home care services to Connecticut residents while not owning any property in Pennsylvania or having any offices or employees in Pennsylvania. Delta countered that it was a Pennsylvania company and the software that was utilized by Companions was accessed in Pennsylvania and was stored and operated on computers in Pennsylvania. Delta also argued that its billable professional services were performed by Delta in Pennsylvania and that Companions’ employees conducted extensive contract negotiations via communications and in-person meetings in Pennsylvania. In its opinion, the Superior Court emphasized that Companions conceded that its representatives came to Pennsylvania to engage in contract negotiations and also contacted Delta to re-start discussions following a break in the negotiations. The Court also noted that Companions needed a password and subscription to access Delta’s restrictive software program, which was stored and operated in Pennsylvania; contrasting this situation from that of a ‘passive website’ in which a Pennsylvania website merely makes information available to foreign companies via the internet. Ultimately, the Superior Court determined that Companions’ interactions with Delta constituted the requisite minimum contacts to establish Pennsylvania’s specific personal jurisdiction over Companions and it affirmed the trial court’s overruling of Companions’ preliminary objections. Thanks to Greg Herrold for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Is Post Traumatic Stress Disorder a "Physical Injury?" (PA) December 12, 2019 < Back Share to: Earlier this year, we reported on a New York verdict, where a jury awarded eight figures to a plaintiff whose most significant injury was mental and emotional anguish. And we noted in that post that "Emotional trauma is considered an invisible injury because it is not something that can be seen on a scan or repaired with surgery, but can nevertheless lead to high, even exorbitant verdicts, if the “stars align” in plaintiff’s favor at trial." Now, Pennsylvania finds itself examining whether a solely mental/emotional injury constitutes a physical injury, in the context of a first-party claim for medical benefits (also known as PIP or No Fault benefits, depending on the state.) According to the Pennsylvania Superior Court, the answer to whether Post Traumatic Stress Disorder is a physical injury is . . . it depends. In Evans v. Travelers, the Pennsylvania Superior Court reversed the order of the Court of Common Pleas of Wayne County granting summary judgment in favor of Travelers. Plaintiff Evans suffered a concussion, closed head injury, post-concussion syndrome, vertigo, post-traumatic vascular headaches, post traumatic vestibuloneuronitis, and PTSD after a tractor-trailer struck her car while she was driving on I-476. The collision pinned her car between the tractor-trailer and the road’s center median. While Travelers paid Evans for her injuries sustained in the accident, it denied her claim for future coverage for her continued treatment of PTSD. Travelers asserted that PTSD did not constitute a “bodily injury,” which would have given rise to future coverage under Evans’s policy. The Travelers policy limited “bodily injury” to “accidental bodily harm to a person and that person’s resulting illness, disease, or death.” That same—admittedly circular—definition of “bodily injury,” was relied on by the Pennsylvania Superior Court in Zerr v. Erie Ins. Exchange. The Zerr court found that the above definition of “bodily injury” did not include emotional or mental injuries unless they were caused by a physical injury. The lower court had found in Travelers’ favor because it reasoned that the plaintiff failed to show that her PTSD stemmed from her physical injuries, and thus, was not entitled to future coverage. The PA Superior Court, however, reversed—finding that the definition of what is considered a bodily injury may not be so clear. The Court distinguished Zerr, since the plaintiff’s claim in Zerr did not involve bodily injury because it was based solely on emotional injuries without any accompanying physical injuries. In contrast, Evans’s claim involved both physical injuries and emotional distress, including PTSD, which stemmed from her accident. Ultimately, the Evans found there was a genuine issue of material fact whether Evans continued to suffer from her physical injuries causing her PTSD. Evans presents a broader interpretation of “bodily injury” as used in most insurance policies. Further, although the court did not state exactly what constituted “bodily injury” or whether PTSD constituted “bodily injury,” it did open up the door for more injuries to become a “bodily injury” as long as the claimant can show an injury is related to some physical harm. A downside for insurers is that if emotional injuries like this one are presented to a jury, they can be very expensive to defend through expert testimony, and also, unpredictable in terms of verdict values. Thanks to John Lang for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Even Trivial Defects are Hazardous When They are “Trap-Like.” August 12, 2013 < Back Share to: In Shane v. Supernova New York Realty LLC, plaintiff tripped and fell on a step when his boot got caught in a space where two pieces of granite joined to form the step. The two pieces of granite had a height differential of approximately one-half inch. Defendant moved for summary judgment arguing that the defect was trivial. In opposition, plaintiff submitted an affidavit from a human factors expert that stated that the defect was the type that could cause a person to catch his shoe. That coupled with the fact that it was located in a heavily trafficked area that was not well-lit, caused the defect to become a “trap.” The court held that the half inch height differential was “trivial” as a matter of law, however since the defect had characteristics rendering it “trap-like,” summary judgment was denied. For questions about this post, please email cfuchs@wcmlaw.com .     Previous Next Contact

News Negligent Lawyering Misses Statute of Limitations on Intentional Torts (NY) October 15, 2019 < Back Share to: Statutes of limitations can be tricky and it’s very important to ensure what category your claim falls or you may be SOL! This blunder was made apparent in the case of Potter v. Zucker Hillside Hosp. (2019 NY Slip Op 07304) Plaintiff, as guardian ad litem for Rodney Carter, commenced an action in October 2011 stemming from an incident in April 2009. Carter, a paranoid schizophrenic, was admitted as an in-patient at defendant’s hospital and claimed an employee beat him causing loss of vision in his left eye. Plaintiff’s complaint alleged that Carter was taken down, restrained, and controlled in a careless and negligent manner causing severe injuries and damages. Defendants were sued under a theory of respondeat superior. The hospital moved for summary judgment asserting that the cause of action was an intentional tort, not negligence or malpractice and thus, barred by the one-year statute of limitations. The Supreme Court agreed and granted defendant’s motion. Plaintiff appealed. The Second Department affirmed in a decision stating that a court’s job is to look at the substance of the allegations rather than the characterization. As New York does not recognize a cause of action for negligent assault, the one year statute of limitations for assault and battery would apply. As a practice point, it is always key to make sure plaintiff’s facts align with the theories alleged in the complaint. The court looked at Carter’s deposition testimony to establish that assault was the correct cause of action despite the plaintiff’s characterization of a negligent takedown. The law is often frustratingly form over substance; refreshingly, the Court looked at substance over form this time. Had plaintiff also pleaded a cause of action based upon negligent supervision or security -- which we understand was referenced, but not specifically pleaded -- the complaint may have survived dismissal. Thanks to Mehreen Hayay for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News PA Court Holds NJ Transit Is Not An Arm Of The State of New Jersey July 7, 2023 < Back Share to: The case stems from an incident on August 9, 2018, wherein a collision occurred between an NJ Transit bus and a personal vehicle in which plaintiff, Galette, was a passenger in Philadelphia, PA. Galette v. NJ Transit, 293 A.3d 649, 652 (PA. Super. Ct. 2023). Galette suffered various physical injuries as a result of the collision and filed suit alleging negligence against, among others, NJ Transit. Id. The lawsuit was filed in Pennsylvania. In its answer, NJ Transit raised a New Matter alleging it was an “arm” of the State of New Jersey, and that the plaintiff’s claims against it were barred by the doctrine of sovereign immunity. Id. Sovereign immunity is rooted in the idea that the “Crown could not be sued without consent in its own courts.” Id. (citing Alden v. Maine, 527 U.S. 706, 715 (1999). The United States Supreme Court has held that the Eleventh Amendment provides for the doctrine’s application to the states; specifically, the Amendment is evidence of an intent to “preserve the States’ traditional immunity from private suits.” Id. see also U.S. Const. Amend. XI. However, the Court has also emphasized that, “the bare text of the Amendment is not an exhaustive description of the States’ constitutional immunity from suit.” Id. Although the State of New Jersey was not directly named as a defendant in this matter, courts have long held that sovereign immunity extends to “entities which are agents or instrumentalities of the state such that a suit brought against them would be, for all practical purpose, a suit against the state itself.” Id. The PA Supreme Court has determined whether an entity qualifies for sovereign immunity treatment depends upon the following six factors of “equal importance:” (1) the legal classification and description of the entity within the governmental structure of the State, both statutorily and under its caselaw; (2) the degree of control the State exercises over the entity; (3) the extent to which the entity may independently raise revenue; (4) the extent to which the State provides funding to the entity; (5) whether the monetary obligations of the entity are binding upon the State; and (6) whether the core function of the entity is normally performed by the State. Id. Here, the Court held that NJ Transit satisfies the first three elements of Pennsylvania’s six-part test. Id. First, under New Jersey law, NJ Transit is constituted as an “instrumentality of the State exercising public and essential governmental functions, and the exercise by [NJ Transit] of the powers conferred by this act shall be deemed and held to be essential government functions of the state.” Id; See also N.J.S.A. § 27:25-4. The second factor regarding relative autonomy is also supportive of a finding that NJ transit is an “alter ego” of the State’s government. Id. Finally, the sixth factor supports the same conclusion as NJ Transit’s activities are explicitly identified as an “essential governmental function” of New Jersey. Id; see also N.J.S.A. §27:25-4. Conversely, the remaining three factors point to the opposite conclusion. Id. Specifically, NJ Transit is independently empowered to raise revenue though “the disposition of real and personal property by setting and collecting fares, rental fees, and other charges, and/or by depositing corporate revenues in interest-bearing accounts.” Id; see also N.J.S.A. § 27:25-5(k). Further, “NJ Transit is funded from a combination of federal, state, and local funds, such that it is not totally reliant on state funds.” Id. Accordingly, “the State is under no legal obligation to pay NJ Transits debts or to reimburse NJ Transit for any judgments that it pays.” Id. Because not all of the six factors could be established, NJ Transit is not an arm of the State of New Jersey, and the Pennsylvania Superior Court found “no risk to the sovereign dignity of New Jersey” in permitting a suit against NJ Transit to proceed. Id. Hopefully, this does not raise tensions with the State of New Jersey. Thanks to Hannah Garber for her contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News An App for Everything -- A New Way to Report Potholes. September 16, 2009 < Back Share to: A lack of notice is a historical defense to claims against a municipality involving potholes and the like. Thanks to a new iphone app that defense may fall by the wayside. A new iphone app being revealed will allow citizens to instantaneously report dangerous conditions. The notice defense may thereby fade into history. http://www.macworld.com/article/142839/2009/09/citysourced.html Previous Next Contact

News How Careful Should Athletes (and Defendants) Be in New Jersey? (NJ) November 21, 2019 < Back Share to: In Mesar v Bound Brook Board of Education, a teenage plaintiff sued his local school board after he severely broke his ankle while playing baseball for the school team. Specifically, he claimed the assistant coach improperly signaled for him to slide into third base as he approached, causing the injury. The defendants won summary judgment in the first instance and plaintiff appealed. The Appellate Division took the opportunity to reiterate that although it is incumbent on instructors and coaches not to increase the risks over and above those inherent in the sport, the appropriate standard of care for accidents in sports is recklessness. However, in making this motion, defendants argued plaintiff had failed to plead recklessness in his complaint, rather than arguing, plaintiff presented insufficient facts to support a claim of recklessness. When evaluating whether a complaint should be dismissed for failure to state a claim, the Court must determine “whether a cause of action is ‘suggested’ by the facts,” and the Appellate Division found plaintiff’s complaint met that very lax standard. As a result, even though defendants successfully obtained the higher standard of care for the time of trial, refraining from arguing insufficient evidence to satisfy the standard meant the motion was remanded to revisit that issue. The ruling is beneficial for defendants in that it pushes back on any narrowing of the recklessness standard in the context of sports accidents, but it is a reminder to make alternative arguments on dispositive motions to close any possible backdoor escape hatches for plaintiff’s counsel. Thanks to Nicholas Schaefer for his contribution to this post. Please e-mail Vincent Terrasi with any questions. Previous Next Contact

News Vicarious Liability Found In A Motorcycle Accident By Off-Duty Cop (NY) April 8, 2022 < Back Share to: In Llorente v. Wnorowski, 2022 NY Slip Op 02258 (2d Dept. 2022), the plaintiff was riding a motorcycle on the Grand Central Parkway when it collided with another motorcycle operated by the defendant Wnorowski, an off-duty police officer at the time, who was riding with other off-duty police officers on motorcycles. The plaintiff commenced a personal injury action against him and against his employers, the defendants City of New York and New York Police Department. The City and NYPD moved for summary judgment dismissing the complaint arguing that they were not vicariously liable for Wnorowski's actions because he was not acting within the scope of his employment as a police officer at the time of the accident, and that no police action otherwise contributed to the happening of the accident. the trial court denied the motion. Under the doctrine of respondeat superior, an employer is vicariously liable for a tort committed by an employee while the employee is acting within the scope of his or her employment [Rivera v State of New York, 34 NY3d 383 (2d Dept. 2020)]. "'Conversely, where an employee's actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment'" [Danner-Cantalino v City of New York, 85 AD3d 709 (2d Dept. 2011)]. Usually, these issues are left for a jury to decide. The Second Department affirmed the trial court’s decision citing the fact that there was conflicting testimony that the off-duty police officer attempted to pull over the plaintiff’s motorcycle prior to the accident. The simple act of attempting to pull over the plaintiff’s vehicle, even though he was not on the clock, was sufficient to create a triable issue of fact for a jury to review. The key takeaway on this case is that an employer can be found liable for the actions of his employee, even if that employee is off the clock, if it can be shown he acted within the functions of his employment at the time of the accident. The employer should be wary of making sure that the employee leaves his work at the place of business to avoid any semblance of vicarious liability which could extend to the employer. Thanks to Raymond Gonzalez for his contribution to this article. Should you wish to discuss, please feel free to contact Tom Bracken. Previous Next Contact

News WCM Welcomes Steve Kim and Craig Chaney to our NJ Office August 2, 2022 < Back Share to: WCM is pleased to announce the return of Steve Kim, and welcomes Craig Chaney, both at the rank of counsel in our New Jersey office. Steve previously worked for WCM as a litigation associate from 2014 – 2019. During that time, he handled complex, large exposure cases, consistently achieving favorable results for our clients. Steve returns having gained further experience in managing, training, and leading a legal team consisting of young associates, paralegals and legal assistants related to personal injury defense of high-profile clientele. Craig is a skilled litigator with over two decades of experience in insurance defense and insurance coverage litigation. He is a trial attorney whose practice focuses on defense of complex general liability claims and premises liability claims. Steve and Craig present a strong addition to WCM’s defense practice in New Jersey. Previous Next Contact

News U.S. Supreme Court's Decision Not To Review Enron Case Sounds The Death Knell To Lawsuit January 24, 2008 < Back Share to: Enron investors' lawsuit, attempting to recoup losses from investment banks that did business with the defunct energy company, suffered a major setback when the United States Supreme Court refused to review a lower court's ruling which dismissed this theory of liability. Notably, a week earlier, in a different, but similar action involving investors of Charter Communications, the Supreme Court ruled investors in that case did not have a right to sue outside entities that did business with Charter Communications because those investors did not rely on the deceptive acts of those entities. http://www.nytimes.com/2008/01/23/business/23enron.html?_r=1&scp=2&sq=Enron&st=nyt&oref=slogin Previous Next Contact