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News Can An Expert Conclude that Excessive Floor Cleaning Create a Dangerous Condition? (NJ) October 31, 2016 < Back Share to: In Elaine Anderocci v. Coach Inc., the Appellate Division for the Superior Court of New Jersey discussed whether plaintiff’s expert report was admissible to show defendant’s floor cleaning practices created a dangerous condition. Plaintiff was reaching for a handbag on a shelf in a Coach store when she slipped and fell fracturing her shoulder. Plaintiff argued that “[t]he very slippery floor was like a sheet of glass.” Plaintiff obtained a report from a wood flooring expert who described the wood flooring as "quartersawn walnut planks" installed in a herringbone pattern and milled with stress relief. Although the expert never examined the store’s floor, he concluded that the slippery condition of the floor was attributable to the use of excessive water in cleaning it. The expert based his conclusions on the record, which indicated it was Coach, Inc.’s practice to have the floor “damp mopped” three times per week. According to the plaintiff’s expert, if too much water is used to mop this type of flooring, the water can cause the surface to cup or crown—thereby creating a slippery and dangerous condition. The plaintiff’s expert cited to the National Wood Flooring Association (“NWFA”) maintenance guidelines, which state that floor crowning can be caused by “moisture imbalance” due to excessive water used when cleaning a wood floor. The court granted summary judgment to the defendant concluding that the plaintiff’s expert report comprised an inadmissible net opinion. He did not inspect the flooring, and accepted plaintiff’s deposition testimony at face value. There was no evidence in the record that defendant’s floor was “cupped” or “crowned.” Notably, the expert report did not establish why Coach, Inc.’s practice of damp-mopping the floor three times per week was too frequent, or conversely, too infrequent. Accordingly, the conclusions were too speculative to be admissible and were not sufficiently grounded upon facts in the record. Defense counsel should be cognizant that just because an expert is well versed in a specific area, if there is no objective evidence tying the conclusion to the specific facts of the case, it may be rejected by the court as an inadmissible net opinion. Thanks to Ken Eng for his contribution to this post.       Previous Next Contact

News 9/11 $575,000,000 Settlement Rejected by Court. March 20, 2010 < Back Share to: In a stunning development, Judge Alvin Hellerstein has rejected the $575,000,000 settlement reached by the parties. Judge Hellerstein ruled that the settlement was "not enough." It's back to the drawing board in MC 100. http://www.1010wins.com/-This-Settlement-Is-Not-Enough-/6615869 Previous Next Contact

News Taxi Responsible for Fatal Hit of Passenger After Drop Off (NY) September 21, 2016 < Back Share to: Recently, the Appellate Division, Second Department, held that a taxi driver may owe a duty to its passenger once the passenger has exited the vehicle. In O'Connor v. Ronnie Cab Corp., 2016 NY Slip Op 05980, plaintiff exited a taxi and walked around the car to cross the street. As plaintiff as doing so, he was struck by another vehicle coming down the street and killed. The Court found that there were questions of fact as to whether the taxi driver’s positioning of the car when dropping plaintiff off obstructed plaintiff’s view of oncoming traffic causing plaintiff’s incident. At the time of the accident, the taxi was far from the curb and was partially inside of an active travel lane. The Court determined that the duty of a common carrier to safely discharge a passenger may have ended when plaintiff exited the vehicle, but the driver’s duty to plaintiff as a pedestrian just began and that it was the violation of that duty that may be the proximate cause of plaintiff’s death. This decision exemplifies one of the few circumstances where an active driver in a pedestrian knock down case may not be liable for plaintiff’s injuries and instead, the car blocking plaintiff’s view of oncoming traffic may be to blame. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

Philip A. Wines Law Clerk New York pwines@wcmlaw.com 332 251 0739 Publications Philip Andrew B. Wines, A Proxy for Piety: A Closer Look at Religious Cost in the Substantial Burden Inquiry , 93 Fordham L. Rev. 29 (2024). News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Fordham University School of Law B.A., Fordham University

News Insurance Broker’s Fiduciary Duty a “Fact-Specific” Question of Law for the Court October 3, 2017 < Back Share to: One particularly thorny area of the law with respect to insurance providers and brokers is the scope and breadth of any attendant fiduciary duties owed to an insured. In Ring v Meeker Sharkey Associates LLC, the New Jersey Superior Court Appellate Division recently upheld the trial court’s decision that the Plaintiffs’ homeowners’ insurance brokers did not owe a duty to advise the insureds of vulnerability in their coverage and a need for excess flood insurance. Ring is another case developing New Jersey’s insurance law following Hurricane Sandy. The Plaintiffs owned two beachfront homes along the Jersey Shore. For more than a decade, they secured both homeowners and flood insurance for the homes through Defendant Meeker Sharkey. In 2008, Plaintiffs moved their insurance accounts to Willis of New Jersey. In 2010, Plaintiffs’ moved their homeowners’ coverage back to Meeker Sharkey, but continued to secure flood insurance through Willis. In 2012, Hurricane Sandy ravaged Plaintiffs’ properties, causing catastrophic – and largely uncovered – losses to both. The crux of the ensuing litigation was Plaintiffs argument that as part of their transfer of homeowners’ insurance back to Meeker Sharkey in 2010, the firm undertook a review of Plaintiffs’ insurance coverage generally, and therefore owed a duty to alert Plaintiffs to their gap in flood insurance coverage, as well as a duty to affirmatively advise them to obtain excess floor insurance. The Ring Court decision underscores and reiterates than in New Jersey, the determination of whether a duty exists is a question of law to be determined by the courts, while also noting that there is no bright-line rule and that the inquiry is intensely fact-specific. Here, the Court found that the homeowners’ insurance broker did not have a duty to provide advice about flood insurance where the Plaintiffs engaged a separate entity, Willis, to secure its flood insurance. The fact that Meeker Sharkey knew or should have known of the gap in coverage did not create a duty to Plaintiffs under these circumstances. Ultimately, the Ring court was not called to determine whether Willis had breached the duty it owed. The question of whether or not that duty was breached is one of fact, for a jury. Thanks to Vivian Turetsky for her contribution to this post. Previous Next Contact

News WCM is Pleased to Announce that Matt Care has been Promoted to Partner June 30, 2021 < Back Share to: Effective, July 1, 2021, Matt Care is officially the newest partner in WCM's Philadelphia office. Matt started working at WCM in 2015. He primarily defends individuals and businesses in a wide variety of general liability, construction defect, premises liability, insurance coverage disputes, bad faith claims, professional liability claims, and product liability lawsuits, from inception up to and including trial. Matt regularly achieves excellent, cost-effective results for his clients and further has significant experience dealing with large loss, high exposure, and complex civil matters. Matt is a graduate of Princeton University and Temple University Beasley School of Law and is regularly involved with the local LGBT professional law organizations. Previous Next Contact

News Insurer Off the Hook for Loss of Business Income Due to Clogged Toilet (NJ) January 3, 2019 < Back Share to: A New Jersey appellate court recently decided whether an insurer must provide additional coverage for damage caused to a restaurant by sewage backup in FOUZIA SALIH v. OHIO SECURITY INSURANCE. After a dreadful toilet clog in a New Jersey restaurant, plaintiff sought coverage in excess of its policy’s $25,000 limit for heavy damage to the restaurant under a lost business income provision. The clog destroyed the water heater, furnace, restaurant’s tiles, basement, first-floor bathroom, and kitchen, causing $162,933.63 in total damage. The policy’s general provisions excluded coverage for water damage caused by backup or overflow but included a custom endorsement which provided a $25,000 sublimit for such events. A public claims adjuster determined that the loss was caused by water discharge while the insurer determined that the cause of loss was raw sewage backup. The insurer issued checks for $25,000 for the damage and plaintiff filed a lawsuit after finding that the damages far exceeded the endorsement limit. In the lawsuit, plaintiff sought more coverage and alleged that the insurer breached its terms to provide benefits covered under the policy. The insurer moved for summary judgment and plaintiff filed an opposition relying on the business income provision, which states that the insurer will cover the actual loss of income sustained due to damage. The lower court ruled in favor of the insurer, finding that the custom endorsement put plaintiff on notice that the business income provision would not cover damages if the water damage coverage was only created as a result of the endorsement. Finding that the policy terms were clear, unambiguous, and supported the insurer’s interpretation of the policy, the appellate court affirmed the lower court’s decision. Thanks to Chelsea Rendelman for her contribution to this post. Previous Next Contact

News Watch Where You Walk: Not All Falls Produce Valid Labor Law 240(1) Claims. May 24, 2013 < Back Share to: In Carey v. Five Brothers, Inc., Carey, a subcontractor supervisor, delivered work equipment to his crew construction a new supermarket. When returning to his truck, plaintiff fell partially through an open manhole atop a 10-foot-deep precast drainage vault. The drainage vault had a metal collar for the manhole cover, which had been dislodged. There was no information regarding when, how, or by whom the cover was dislodged. In addition, there was snow on the ground where Carey was injured. Plaintiff sued various parties for violations of New York Labor Law Labor Law §§ 240(1), 241(6), and 200. All parties moved for summary judgment, but the lower court found issues of fact. On appeal, the Second Department held, that it was error for the lower court to deny those branches of the defendants motions that sought dismiss of the Labor Law § 240(1) claims. In making its ruling, the Second Department noted that although Carey's injuries were allegedly the result of a fall, the injuries did not arise in the context of the "special hazards" against which the statute is designed to protect, namely, "the exceptionally dangerous conditions posed by elevation differentials at work sites." Similarly, the court dismissed the Labor Law § 241(6) claims because none of the regulations that the plaintiff were applicable to the facts. Importantly, the Second Department upheld the position that not all falls from heights fall within the ambit of Labor Law 240(1). However, the Second Department let plaintiff’s Labor Law § 200 claims remain, stating that the defendants failed to establish prima facie that they neither created nor had constructive notice of the allegedly dangerous condition presented by the dislodged collar and manhole cover. Thanks to Lora Gleicher for her contribution to this post.   Previous Next Contact

News Conclusory Expert's Opinion Insufficient To Stave Off Summary Judgment In Escalator Case January 25, 2008 < Back Share to: In Parris v. Port of New York Authority and Otis Elevator, 2008 NY Slip Op 00197, AD and New York Co. Index 121678/03, plaintiff claims to have suffered injuries when the escalator at the Port Authority Bus Terminal he was riding suddenly "jerked" and "pulled" causing him to fall backwards and hit his head. Defendants moved for summary judgment arguing that even if a mechanical defect existed, there were no records of prior complaints and service maintenance records equally reflected no problems. Plaintiff opposed this motion by submitting an affidavit of an expert engineer. This expert, who never conducted an on-scene inspection, averred that plaintiff's accident could have been due to warn parts. While the trial court denied summary judgment, finding a question of fact was raised by this expert, the Appellate Division - First Department disagreed, finding the expert's findings to be factually unsupported and too speculative. On an awkward note, the trial judge, Justice Rolando T. Acosta, was recently promoted to the Appellate Divison - First Department and now sits with the very judges that reversed him. http://www.nycourts.gov/reporter/3dseries/2008/2008_00197.htm Previous Next Contact

News Pump The Brakes - Punitives Aren't Always Prudent March 8, 2024 < Back Share to: Let’s say you have a delivery business and that that business employs truckers. One day, one of the truck drivers employed by the business gets into an accident. Now not only is the driver and your business being sued for negligence, but the plaintiff says they want punitive damages too! In a society that is, at this point, built around the use of automobiles for transportation, are punitive damages always available? Applying Pennsylvania law, the United States District Court for the Western District of Pennsylvania recently decided a motion to dismiss for failure to state a claim in Jones v. Silver Creek Transport , LLC, which dealt with the availability of punitive damages. Roy Jones (“Jones”) brought an action in negligence against Silver Creek Transport, LLC (“Silver Creek”) and Aaron Baxter (“Baxter”). Jones v. Silver Creek Transp., LLC, No. 2:23-CV-01461-MJH, 2023 WL 7301076, at *1 (W.D. Pa. Nov. 6, 2023). As part of Jones’ complaint he alleged “recklessness,” “outrageous conduct,” and “gross negligence.” Id . In response to the complaint, the defendants filed a motion to dismiss allegations of recklessness, outrageous conduct, and gross negligence, and the claim for punitive damages. Id . The defendants argued that “Jones's punitive damages claim should be dismissed because the Complaint fails to establish the ‘something more’ component beyond the ordinary negligence averments required for punitive damages.” Id . at 4. Further, the defendants argued that Jones’ complaint “alleges no conduct that elevates Mr. Baxter's actions to outrageous or egregious actions” and that the allegations against Silver Creek were “boilerplate, conclusory allegations regarding whether it trained Mr. Baxter inadequately, failed to monitor or supervise him adequately, failed maintain its vehicles adequately, or otherwise failed to properly comply with certain, undefined statutes or regulations.” Id. Whereas Jones argued that his complaint did in fact meet the requirements for punitive damages, id., the court granted the motion to dismiss the allegations and claim for punitive damages. Id. at 5. What was the court’s reasoning? The court stated that in “Pennsylvania, the assessment of punitive damages is proper when a person's actions are of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct.” Id . at *4 (internal quotations omitted) (citing SHV Coal, Inc. v. Cont'l Grain Co. , 587 A.2d 702, 704 (Pa. 1991)). Likewise, the court articulated that the Pennsylvania Supreme Court has previously adopted Section 908(2) of the Restatement (Second) of Torts, which states that: Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant's act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause[,] and the wealth of the defendant. Id .; see also Restatement (Second) of Torts § 908(2). Specifically, in “the motor vehicle context, ‘simple allegations limited only to a defendant failing to comply with traffic laws are not sufficient for punitive damages.’” Id . (citing Carson v. Tucker , 2020 WL 4015244 at 4 (E.D. Pa. July 16, 2020)). Moreover the court observed that the Pennsylvania Supreme Court had also held “that defendant's negligent speeding, failure to properly signal, and failure to properly observe roadways did not warrant punitive damages” Id. (summarizing Babenko v. Dillon, No. 5:19-cv-00199, 2019 WL 3548833 at 3 (E.D. Pa. Aug. 2, 2019)). The upshot of the court’s application of the legal standards for punitive damages and ruling on a motion to dismiss the punitive damages claim was that the court recognized that Jones’ complaint “contains conclusory allegations that label Defendants’ conduct as reckless, wanton, or outrageous. Moreover, said allegations are devoid of facts that would support any specified conduct or violations of specific regulations or statutes.” Id . Specifically, the court noted that “[t]he inclusion of simple allegations that a truck driver did not comply with the law or violated regulations does not, by itself, satisfy the requirements of Pennsylvania law for awarding punitive damages.” Id. (citing Elmi v. Kornilenko , 2018 WL 1157996, at *5 (W.D. Pa. Mar. 2, 2018)). Simply stated, the court held that Jones’ complaint “contains a litany of allegations against Defendants that are unsupported by the requisite specificity to reach a plausible conclusion regarding Defendants’ conduct which would buttress a punitive damage claim. Therefore, Mr. Jones's claim against Defendants for punitive damages and the averments purporting to support the same will be dismissed.” Id . What does this mean for you and your delivery business or for your truck driver employee? An accident on the road which leads to a negligence suit against the business, or the driver, might or might not have facts and circumstances that would make a punitive damages claim viable. Be wary of punitive damages claims, because unless the plaintiff can aver the facts that make our business and employee’s conduct into conduct that is outrageous because of an evil motive, or recklessly indifference to the rights of others, there is a very good chance that the punitive damages claim can be dismissed. Jones v. Silver Creek Transport LLC .pdf Download PDF • 207KB Previous Next Ryan Hunsicker Ryan Hunsicker Senior Associate +1 267 239 5526 rhunsicker@wcmlaw.com Contact

News Don’t Be Shocked by Denial of Labor Law 240(1) (NY) June 18, 2021 < Back Share to: The New York Supreme Court, Kings County has recently held that if a plaintiff is doing non-electrical work at a construction job site but touches live electrical wires and then falls from a height after being electrocuted, that plaintiff is not entitled to summary judgment pursuant to Labor Law 240(1). In Synysta v. 450 Partners LLC, the plaintiff, a painter, was on a Baker’s scaffold and was spackling the tops of columns 10-12 feet high. The plaintiff’s employer had been hired to paint walls, ceilings, and doors, at a renovation. In the process of performing this work, the plaintiff was trying to reach around the column and held onto an electrical box for support. The plaintiff claimed that when he grabbed the electrical box he received an electric shock, which caused him to fall from the Baker’s scaffold to the ground and sustain injuries. The plaintiff asserted causes of action against the property owner and the general contractor based upon alleged violations of Labor Law 240(1), 241(6), 200, and common law negligence, but only moved for summary judgment on the Labor Law 240(1) and 241(6) claims. The plaintiff’s motion for summary judgment on Labor Law 240(1) and 241(6) claims centered on the argument that the Baker’s scaffold was defective in some way and did not have proper safety railings. However, the Supreme Court held that although the plaintiff was performing work covered under Labor Law 240(1) when he was injured, his work had nothing to do with the electrical box which contained the live wires – and therefore the defendants had not violated Labor Law 240(1) by failing to provide safety materials specifically to prevent plaintiff from falling as a result of being electrocuted. Thanks to Shira Strauss for her contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Advertise Away, It Has Little to Do With Venue (PA) March 10, 2017 < Back Share to: On March 8, the Superior Court of Pennsylvania affirmed a lower court’s decision to transfer venue in Wyszynski v. Greenwood Gaming & Entertainment, Inc. Wyszynski v. Greenwood Gaming & Entertainment, Inc., The case arises out of an alleged slip and fall that Wyszynski suffered in the restroom of Parx Casino in Bensalem, Pennsylvania. The complaint was originally filed in Philadelphia. Defendant Greenwood Gaming & Entertainment, Inc. (“Greenwood”) filed preliminary objections, arguing that venue was improper and that the case should have been filed in Bucks County. Greenwood argued that it did not regularly conduct business in Philadelphia. The Philadelphia Court of Common Pleas granted Greenwood’s preliminary objections and transferred the case to Bucks County. Wyszynski then appealed, arguing that Greenwood advertises heavily in Philadelphia. In Pennsylvania, a plaintiff’s choice of forum is given great weight. An action against a corporation, in Pennsylvania, may be brought in the county where its registered office or principal place of business is located, a county where it regularly conducts business, the county where the cause of action arose, or a county where the transaction or occurrence took place out of which the cause of action arose. Greenwood has its office in Bucks County and neither party disputed that the cause of action arose in Bucks County as well. Wyszynski argued, however, that Greenwood “regularly conducts business” in Philadelphia. Pennsylvania applies a quality and quantity test to determine if a business regularly conducts activity in a county. Quality acts mean those directly, furthering, or essential to corporate objectives. It does not include incidental acts. Quantity means those acts that are so continuous and sufficient to be general or habitual. Those acts in aid of a main purpose are incidental while those necessary for the corporation’s existence are direct. Numerous courts in Pennsylvania have held that mere solicitation of business does not amount to conducting business in a county. Wyszynski pointed to the fact that Greenwood had substantial advertisements in Philadelphia newspapers, magazines, on radio stations, on television, and sponsoring events in Philadelphia. The court disagreed with her, however, and held that advertising is incidental to the purpose of business. They further stated that advertising, no matter how pervasive, cannot satisfy the quality and quantity analysis. This case demonstrates the importance of analyzing a business’s activities in different counties when it is a defendant in a case. Looking at a company’s website and asking a corporate rep about their advertising and activities in the area can give defense counsel an insight into whether the case can be transferred to a more defense-friendly venue. This little bit of homework at the beginning of a case can lessen liability and lead to reduced verdicts in the long run. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact