Wade Clark Mulcahy LLP

News New Jersey Ongoing Storm Rule Applies to Commercial Private Property July 14, 2023 < Back Share to: In Pareja v. Princeton Int’l Prop., 246 N.J. 546 (2021), the New Jersey Supreme Court adopted the “Ongoing Storm Rule” which holds that a commercial landowner does not have a duty to remove snow or ice from public walkways until a reasonable time after cessation of the precipitation. The Supreme Court created two exceptions to the rule: (1) where a commercial landowner creates an “unusual circumstance” that increases the risk to pedestrians and invitees on their property; and 2) if the dangerous condition is pre-existing such as failure to remove or reduce snow or ice from a previous storm. The rule has been extended to snow removal contractors. In Smith v. Costco Wholesale Corp., the Appellate Division recently addressed this rule in a case where plaintiff was injured in a fall in a Costco parking lot during a snowstorm. The trial court granted defendants motion for summary judgement based on the “Ongoing Storm Rule” and plaintiff appealed. The Appellate Division affirmed, holding that the trial court correctly found that plaintiff was unable to establish that the defendants owed a duty of care because the Ongoing Storm Rule applied. Plaintiff argued that the rule did not apply to privately-owned commercial property, and that exceptions to the rule applied. However, the Court observed that if a storm is ongoing, commercial landowners do not have an absolute duty, and the “impossible burden,” to keep sidewalks or walkways on their property free from snow or ice. The Court also noted that there was no indication in Pareja that the Supreme Court intended to apply the rule only to public property, adding that the task of removing snow during an ongoing storm was just as burdensome to commercial landowners on private property as it is on public property. The Court also found that plaintiff failed to show that an exception to the rule applied. Plaintiff argued that defendants exacerbated the risk because they did not allow her to take her shopping cart to her vehicle for support and also began snow removal operations before the storm. However, the Court found the argument without merit because plaintiff failed to tell Costco employees that she intended to use the cart as a means of support, and failed to show that the snow removal was done in a manner that would have increased her risk of injury. The Smith decision is significant in that it extends the “Ongoing Storm Rule” in Pareja to commercial private property and serves as a reminder that a landowner will generally avoid liability for accidents which occur during a snow/ice storm unless one of the exceptions apply. Landowners must act to remove the snow and ice within a reasonable time after a storm or face liability for any resulting accidents. Thank you to Jordan Davis for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News California Dreamin': Professional Athletes Flock to CA To File WC Claims April 6, 2010 < Back Share to: As the old saying goes, "it could only happen in California." California's workers compensation system apparently is the venue of choice for many professional athletes who sustain "work related" injuries during professional athletic activities. The typical injuries are orthopedic in nature and involve painful --and expensive-- joint replacements many years after the athletes have stopped playing their sport. The basis for California jurisdiction is easy to satisfy. The claimant need not have played for a California based team or be resident of the state; playing an isolated game in California will do the trick. The first few claims seeking workers compensation benefits for the permanent effects of concussion and closed head trauma are working their way through California's system. Although it has been decades since many of the claimants have played in a professional game, they seek life time benefits for the costs related to the care and treatment of what they contend is work related head trauma including dementia and brain damage. The battle lines have been drawn about which states can adjudicate these workers compensation claims and whether the claimants can medically establish that their injuries were caused by head trauma sustained decades ago. Right now the NFL is the primary target of these claims but other professional sporting organizations will surely follow close behind. Stay tuned in this high stakes and high profile litigation. If you have any questions about this post, please email Paul Clark at pclark@wcmlaw.com http://www.nytimes.com/2010/04/06/sports/football/06worker.html?ref=football Previous Next Contact

News Be Careful What You Ask For under NJ's A.I.C.R.A. October 4, 2012 < Back Share to: The case of Adrignolo v. Emejuru is a cautionary tale for would be plaintiff’s seeking damages resulting from an auto accident in New Jersey. The plaintiff's one count complaint sought damages for pain and suffering only. As do most complaints, it specified that the plaintiff suffered severe medical and bodily injuries leaving permanent disabilities. During the course of discovery, the plaintiff failed to produce sufficient objective proof of a permanent injury that would qualify for permissible non-economic damages under the Automobile Insurance Cost Reduction Act. "A.I.C.R.A." However, the plaintiff did serve documentation for economic losses, that were not actually sought in the complaint. After court ordered arbitration, the plaintiff finally produced two medical reports that described permanent injury. However, a trial court found these reports to be too little too late. Specifically, the court was unimpressed with the opinions that were based only on the plaintiff’s subjective complaints. Summary judgment was granted to the defendant. On appeal, the judges agreed with that the medical reports failed to provide objective evidence that a body part or organ failed to heal to function normally as required by one of the A.I.C.R.A. categories. Additionally, the judges gave short shrift to plaintiff’s argument that he was at least entitled to economic damages since he had failed to plead this in his complaint. The dismissal was affirmed. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com   Previous Next Contact

News Pennsylvania Grocery Store Chain Faces Multiple Federal Lawsuits Over Face Mask Policy (PA) July 10, 2020 < Back Share to: Numerous lawsuits have been filed in the Western District of Pennsylvania against Giant Eagle, a Pennsylvania grocery store chain, over its face mask policy. Due to the Covid-19 pandemic, Governor Wolf has instituted various mandates in an effort to prevent the spread of the virus, including, inter alia, a requirement that individuals must wear face coverings while in public spaces. In the Complaints, it is alleged that Giant Eagle adopted a policy that requires shoppers to wear a face covering regardless of whether the shopper has a medical condition. Plaintiffs allege that they suffer from medical conditions that prevent them from wearing a face covering and were denied entry to Giant Eagle due to their refusal to comply with the store’s policy. Furthermore, plaintiffs allege that Giant Eagle’s policy is in direct contradiction to Governor Wolf’s April 19, 2020 Order which states, in relevant part, that individuals who cannot wear a mask due to a medical condition may enter the premises and are not required to wear a mask. Plaintiffs allege that Giant Eagle’s “arbitrary policy” violates Title III of the Americans with Disabilities Act (“ADA”) and the Pennsylvania Human Relations Act (“PHRA”). The Complaints allege that the grocery store chain treats its customers who cannot wear masks due to a disability like “lepers” rather than “guests.” Now that many states have begun to reopen retail establishments, we will likely see similar types of lawsuits filed. In addition, businesses will now be faced with the problem of balancing its interest in protecting the health of its customers with the possibility of being sued over its mask policies. We will keep you posted as this develops. Thanks to Rachel Thompson for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. 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 Lack of Causation Finding Results in Defense Verdict (PA) August 23, 2018 < Back Share to: The defendant in a rear-end collision case was recently found not liable for injuries suffered by the plaintiff. In Firoud v. Carr, C.P. Philadelphia No. 160803547, the jury found that plaintiff was unable to prove that the defendant’s actions were causative of her injuries. In September of 2014, plaintiff Hassania Firoud was driving in Northeast Philadelphia when her vehicle was rear-ended by an SUV while stopped in traffic. The SUV had been rear-ended by a vehicle being driven by defendant Jean Carr. Firoud sued Carr alleging that Carr was negligent and caused the SUV to be pushed into Firoud’s vehicle, which caused Firoud to suffer permanent neck and back injuries. Carr stipulated to negligence and the matter was tried solely on the issues of causation and damages. Firourd originally treated with her family doctor and underwent five sessions of physical therapy to address her neck and back pain. Later, Firoud sought treatment with an orthopedic surgeon, who conducted an MRI and diagnosed Firoud with cervical and lumbar disc herniations as well as bilateral radiculopathy. She underwent physical therapy for ten months and completed the treatment in November 2015. Firoud also complained of headaches, anxiety, depression, and panic attacks. Firoud sought treatment with a psychologist and was diagnosed with post-traumatic stress disorder for which she underwent psychological counseling. At trial, Firoud’s expert report from her orthopedic surgeon opined that her back and neck injuries were causally related to the accident. The orthopedic surgeon also determined that Firoud had suffered a serious impairment of functionality. Firoud’s psychological expert opined that the trauma from the accident caused her to experience stress and anxiety, which ultimately resulted in post-traumatic stress disorder. Firoud herself testified that she continued to experience back and neck pain, which caused difficulty lifting heavy objects at work as well as performing household chores. She also testified that she suffered from anxiety, which was worse when driving, and also experienced moodiness and lethargy. She sought compensation for her medical costs as well as past and future pain and suffering. The defense countered with an expert report from a radiologist who opined that Firoud’s imaging studies showed no evidence of traumatic injury, but rather that only pre-existing degenerative changes were present. The defense counsel also relied on Firoud’s medical records which indicated that Firoud’s cervical and lumbar herniations, radiculopathy, depression, and anxiety had all pre-existed the accident. Furthermore, Firoud had been in several motor vehicle accidents in the 9 years prior to the accident at issue in the lawsuit, and had been previously diagnosed with permanent injuries from those prior accidents. Ultimately, the jury determined that Carr was not liable for Firoud’s injuries. The salient point here, from the defense perspective, is that despite the hole in plaintiff's claim, the facts were nevertheless put to a jury. Kudos to defense counsel for holding plaintiff to his burden. But the risk was certainly present. Thanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons any questions. Previous Next Contact

News Call Your Next Witness - Ross Mallor of PM Legal September 15, 2021 < Back Share to: On today's episode of the Call Your Next Witness podcast, we welcome Ross Mallor of PM Legal. Ross is a true entrepreneur in the litigation arena in the northeast United States. Since joining his father at PM Investigations, now PM Legal, the company has grown from a 2-person investigation company into a 200+ employee company, which conducts investigations for both plaintiffs and defendants, provides litigation support, handles service of process and court filings, and is also now affiliated with elaw and Lexitas. Ross takes advantage of technological innovations, keeps an open mind about new opportunities, and most importantly, listens to his clients. Aside from that, Ross is a fantastic storyteller, and in this interview, relays some great stories about his business practices over the years, a few about conducting surveillance, and even one about playing poker with actor Kevin Pollack. (This story is worth the price of admission.) For more information about Ross's company, check out PMLegal.com Listen to my interview with Ross here: https://lnkd.in/ejnHZK8k -- or search for Call Your Next Witness wherever you download podcasts. If you are interested in being a guest, please email Brian Gibbons or Georgia Coats. Previous Next Contact

News Fact Issues Concerning Plaintiff’s Fault Precludes Summary Judgment in New York Labor Case (NY) September 8, 2023 < Back Share to: New York courts hold that comparative negligence is not a defense in cases involving a claim under Labor Law § 240(1). However, plaintiff’s fault can still form the basis for a defense and prevent plaintiffs from obtaining summary judgment as to a defendant’s liability under § 240(1). The Appellate Division, Second Department, recently addressed these issues in Elibox v. Nehemiah Spring Cr. IV Mixed Income Hous. Dev. Fund Co., Inc. In that case, the plaintiff was performing work on a construction project and was allegedly injured when a scaffold he was working on collapsed. Plaintiff sued the owner and general contractor on the project alleging violations of Labor Law § 240(1) and § 241(6). Plaintiff moved for summary judgment as to defendants’ liability under those sections and the trial court denied the motion. The Second Department affirmed, recognizing that although plaintiff’s comparative negligence is not a defense to a cause of action under Labor Law § 240(1), "[a] defendant is not liable under Labor Law § 240(1) where the plaintiff's own actions are the sole proximate cause of the accident." Viewing the evidence in a light most favorable to defendants as the non-moving party, the Court found that the trial court’s denial of plaintiff’s summary judgment motion was proper because the defendants raised a triable issue of fact by showing that (1) the scaffold was correctly constructed, and (2) that plaintiff affected the condition of the scaffold by removing the nails securing the plank upon which he was standing "in such a manner as to create the condition causing its collapse." In doing so, defendants were able to avoid summary judgment as to their liability and preserve the proximate cause defense for trial. The Elibox decision serves as a reminder that plaintiff’s fault is still a valid consideration in Labor Law cases and can represent a complete defense where a defendant can establish that plaintiff’s conduct was the sole proximate cause of an accident. Courts may find the existence of fact issues as in Elibox, but defendants should pursue the defense if there is evidence that plaintiff was at fault. It should also be noted that defendants in Elibox did not cross move for summary judgment, which would have imposed a higher burden of proof. Instead, they opposed the plaintiff’s motion and benefited from the reasonable inferences given to the non-moving party. Thank you to Alexander Rabhan for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News NY's General Obligations Law § 9-103: A Continued Thorn For Plaintiff's In Personal Injury Cases Against Landowners April 23, 2013 < Back Share to: In Ferland v. GMO Renewable Resources, LLC, the estate of Rene L. Ferland, Jr. filed suit against Fund 6 Domestic, LLC after the decedent died when his snowmobile struck the side of a tractor-trailer that was carrying a load of logs on a private logging road. This road was also used as a snowmobile trail on Fund 6’s property. Fund 6 moved for summary judgment on the grounds that General Obligations Law § 9-103 entitled it to immunity and that the consideration exception to this provision’s grant of immunity did not apply. General Obligations Law § 9-103(1) provides that “an owner…of premises…owes no duty to keep the premises safe for entry or use by others for…snowmobile operation…or to give warning of any hazardous condition…on such premises.” An exception to this exists under G.O.L. § 9-103(2)(b) when consideration is given in exchange for permission to pursue any of the activities enumerated in the section. The plaintiff contended that the consideration exception applied to this case because Fund 6 entered into recreation leases with various non-party fish and game clubs whereby Fund 6 accepted rent in consideration for the clubs to post the leased premises and use them for limited purposes. The key language in the lease agreements was the term “other recreational activities” and the plaintiff argued that this term contemplated snowmobiling, thereby allowing the action to proceed against Fund 6. The Appellate Division disagreed, finding that snowmobile clubs actually maintained the snowmobile trails through volunteer efforts of their members. Further, the court cited to the lease agreement between Fund 6 and the St. Lawrence County Snowmobiling Association that granted the Association permission to use the property for snowmobiling “without charge”. From reviewing the record, the court held that the evidence established that the snowmobile trails were open to the public without charge. Finally, the court gave no credibility to the plaintiff’s attempt to argue that the Association’s use agreement that required it to name Fund 6 as an additional insured on its trail insurance policy, acted as consideration sufficient to trigger the exception. G.O.L. § 9-103 encompasses fourteen different outdoor recreational activities. Whenever a suit is brought against a landowner who has permitted recreational use on its property, it is important to remember G.O.L. § 9-103 as a potential shield to liability – and a continued thorn – in plaintiffs’ personal injury cases against landowners. Special thanks to Michael Nunley for his contributions to this post. For more information, please contact Nicole Brown at nbrown@wcmlaw.com . Previous Next Contact

News Contradicting Story Knocked Plaintiff’s Labor Law §240 Claim (NY) November 18, 2016 < Back Share to: Recently, the Second Department issued a decision in Karwowski v. Grolier Club of City of New York, 2016 NY Slip Op 07625, which reversed the lower courts decision and denied plaintiff’s motion for summary judgment based on alleged violations of Labor Law §240. Plaintiff alleged that he was injured when he fell off of a ladder while painting the interior of the defendants premises. The Court found that the testimony and papers submitted were inconsistent with plaintiff’s account of how the incident occurred, and as a result, plaintiff could not establish a statutory violation. The Court found that plaintiff must show that the statute was actually violated and that it was the proximate cause of his injury to recover under the strict liability statute Labor Law §240. The mere act of falling off of a ladder is in it of itself insufficient to impose liability on to the owner of the premises. As such, plaintiff's motion was denied, and at the very least, 9% interest will not accrue between now and the eventual trial date. Notwithstanding the harsh reality of Labor Law §240 that defendants and insurers face every day, plaintiffs still have a burden to meet. And inconsistencies between tailored testimony and objective proof can provide leverage to defendants toward cost-effective resolutions. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Don’t Skip Steps – Motion for Summary Judgment Denied as Premature Where Discovery as to the Key Issue is Incomplete < Back Share to: In New York, a defendant has several options in seeking to dismiss a civil lawsuit – a motion to dismiss or a motion for summary judgment. Generally, a motion to dismiss challenges the legal sufficiency of a complaint while a summary judgment motion challenges the merits of the case. While summary judgment can dispose of some or all claims in a lawsuit with prejudice, courts are hesitant to award such relief where the parties have not completed discovery relevant to the issues. For example, in Knowles v 21-43 27th St., a United States Postal Service employee was injured while delivering mail at the defendants’ apartment building when a mailbox receptacle fell on her. After some discovery had been completed, defendants moved for summary judgment on the basis that they had no actual or constructive notice of the allegedly hazardous condition. The Queens County Supreme Court denied the motion. The Second Department affirmed but amended the Order to add that the motion was denied “as premature, without prejudice to renewal following the completion of discovery.” In so holding, the Court noted that a party who contends that a summary judgment motion is premature is required to demonstrate that “discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant." The Court found that the plaintiff was able to demonstrate that further discovery, including production of postal records and a deposition of plaintiff’s former coworker, may result in the disclosure of evidence on the issue of notice so the motion was indeed premature. Knowles serves as a reminder that summary judgment will not be awarded where discovery as to the issue at hand is outstanding, particularly where the key facts are only known to an adverse party. At a minimum, parties should have an opportunity to complete the necessary fact-finding before a court will consider summary judgment. Knowles v. 21-43 27th St LLC .pdf Download PDF • 684KB Previous Next Alexander Rabhan Alexander Rabhan Senior Associate +1 212 267 1900 arabhan@wcmlaw.com Contact

News Second Circuit to Art Collector: New York Beats Switzerland. September 24, 2010 < Back Share to: In the case of Bakalar v. Vavra, the Second Circuit was faced with a dispute over the ownership of an Egon Schele -- http://en.wikipedia.org/wiki/Egon_Schiele -- drawing entitled “Seated Woman With Bent Left Leg (Torso)”. The drawing was in the possession of David Bakalar whose ownership of the drawing was challenged by Milos Vavra and Leon Fischer, the heirs to the estate of Franz Friedrich Grunbaum. Grunbaum’s “lost” the piece when the Nazis, after imprisoning him at Dachau (where he later died) made him sign away his rights to the drawing. Bakalar bought the painting from a New York dealer (who had acquired it from Swiss sources) in 1963 for $4,300. Bakalar's rights were challenged after the drawing was sold at a 2008 Sotheby’s auction for $675,000. Bakalar, a Massachusetts resident, filed suit in New York federal court seeking a declaratory judgment that he was the rightful owner of the drawing. The defendants, residents of the Czech Republic and New York, respectively, filed counterclaims for declaratory judgment, replevin, and damages. After a bench trial, a judge in the Southern District of New York held that David Bakalar was the rightful owner. In finding for Bakalar, the trial court applied a site-of-the-original transaction choice-of law test to the case. Since the relevant sale originated in Switzerland, the trial court applied Swiss law to the case and found that the claim was time barred. Under Swiss law “a person who acquires and takes possession of an object in good faith becomes the owner, even if the seller was not entitled to transfer ownership” unless the rightful owner makes a claim within 5 years of the loss or theft.” Swiss law also presumes that a purchaser acts in good faith, and a plaintiff seeking to reclaim stolen property has the burden of establishing that a purchaser did not act in good faith. Here the initial loss occurred in (at latest) 1963 and so a claim/lawsuit was required by 1968. In contrast, in New York, a thief cannot pass good title and a “rightful owner” has the right to commence a lawsuit (irrespective of when the original loss/theft occurred) within three years of demanding the return of the piece and the possessor’s refusal to so consent. An appeal resulted and the Second Circuit weighed in. The Second Circuit rejected the trial court’s use of the situs test and instead applied an interests analysis, in which the law of the jurisdiction having the greatest interest in the litigation is applied and “the facts or contacts which obtain significance in defining State interests are those which relate to the purpose of the particular law in conflict.” The Second Circuit reasoned that New York has a greater interest than Switzerland in prohibiting a flourishing stolen art network. It therefore applied New York law to the claim and held that the claim was not time barred. It remanded the case back to the trial court for further proceedings. Under New York law, Bakalar now has the burden of proving that the drawing was not wrongfully taken from Grunbaum before his death at Dachau. If you would like more information about this post, please contact Mike Bono at mbono@wcmlaw.com or Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.law.com/jsp/nylj/CaseDecisionFriendlyNY.jsp?id=1202471677842 Previous Next Contact