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News "Watch your Step" - Court Upholds Defense Verdict in Light of Jury Instruction (PA) April 10, 2019 < Back Share to: The phrase “watch your step!” has new meaning when it comes to jury instructions. At least that’s what the plaintiff, Donna Kaminski, found out in Kaminski v. Sosmetal Products, Inc., et al. (Pa. Commw. Ct. 2019) when she filed a negligence suit against the defendant property owners. The Commonwealth Court of Pennsylvania decided the case following the plaintiff’s appeal of her post-trial motions after the trial court ruled against her. Plaintiff tripped and sustained injuries while walking on a public sidewalk that abutted the Defendants’ property. As a result, Kaminski sued Sosmetal Products, Inc. and the trustees, who are the property owners. In her complaint, Kaminski argued that “a dangerous, negligent and/or defective condition, existed on [D]efendants’ premises and sidewalk . . . and [D]efendants knew or should have known of the existence.” Ultimately, the defendants admitted to responsibility for the sidewalk and its upkeep. Despite this fact, after asking clarifying questions, the jury decided in favor of the defendants. The decision ultimately came down to three jury instructions that were given. Following the trial court decision, plaintiff filed an appeal arguing that only one jury instruction, Pa. SSJI (Civ) 18.80, should have been given. This instruction basically says that those who have the obligation to maintain a sidewalk that abuts their property have a duty to keep the sidewalk “reasonably safe” and to avoid “unreasonable risk of harm to pedestrians who properly use the sidewalk.” The other two instructions dealt with the classification of a pedestrian walking on a public sidewalk (invitee, licensee, or trespasser) and the duty of care for a licensee, respectively. In this appeal, the plaintiff had to demonstrate that the court below had made an error of law or abused its discretion. Plaintiff disagreed with the fact that she was considered a licensee and felt that this instruction unfairly influenced the jury. The court disagreed with the plaintiff’s assertions. First, it contended that it has been well-established under Pennsylvania case law that those who use public sidewalks in the manner of Kaminski’s case are considered licensees, citing Alexander v. City of Meadville, 61 A.3d 218, 221-22 (Pa. Super. 2012). Additionally, the court stated that Restatement Section 342 clearly outlines how licensees, such as the plaintiff, are to be treated by the property owners in regards to a duty of care. Ultimately, the court felt that it would be inappropriate to allow for Pa. SSJI (Civ) 18.80 to be read to the jury without the other two instructions. Therefore, the lower court did not act in error. The bottom line is that plaintiffs cannot dictate the inclusion or exclusion of jury instructions in negligence cases just to suit their arguments and they cannot ignore case law that has clearly established a specific position that may not suit their case. The trial court did not abuse its discretion by including all three jury instructions -- contrary to plaintiff's argument on appeal. Thanks to Gabi Outlaw for her contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Reasonable Expectation of Insured Trumps Employee Exclusion in a Pennsylvania Court January 27, 2012 < Back Share to: In United States Steel Corp. v. Nat’l Fire Ins. of Hartford, several employees performing maintenance work on behalf of an independent contractor were injured during explosions at a plant owned by United States Steel Corp. The employees filed suit against United States Steel Corp. Defendant insurance companies issued policies to the independent contractors, naming United States Steel Corp. as an additional insured. When the insurers disclaimed, United States Steel Corp. commenced a declaratory judgment action against them. The defendants moved for judgment on the pleadings, arguing that an employer's liability exclusion excluded coverage for the bodily injury claims raised by the employees. The court disagreed, and concluded the insured had the reasonable expectation that each would be covered if sued for injuries to an employee of the other insured. The court reasoned it would be of little benefit to United States Steel Corp. to be an additional insured if it was also required to obtain its own insurance for suits by employees of any other named insured against the plaintiff. http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202539318248&slreturn=1 Thanks to Colleen Hayes for her contribution to this post. Previous Next Contact

News Balkan Art Gangs Back in the News. January 20, 2012 < Back Share to: We previously commented on the Pink Panthers. The problem has not gone away and Balkan art gangs are back in the news. Art insurers beware! For more information about this post, or WCM's fine art practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Tick Tock On The Clock - No Constructive Notice In NJ November 11, 2021 < Back Share to: The Appellate Division recently ruled that where liquid was on the lobby floor for one minute and twenty-three seconds and no employee was in close enough proximity to the site of the spill, no jury could possibly find constructive notice and therefore summary judgment is appropriate. McKiski v. Harrah’s Atlantic City Operating Company, LLC 2021 WL 4428924 at *3 (2021). In McKiski, plaintiff’s slip and fall and the moments that preceded it were all captured on video footage in the lobby of Harrah’s in Atlantic City. The footage showed a group of patrons carrying pillows, sleeping bags, and other items when one member of the group dropped a bag containing a bottle of liquor. This broke the bottle and caused the spill leading to plaintiff’s fall. The group tried to clean up the spill, but after one minute and three seconds, the group left. Twenty seconds later, plaintiff walked by the area and fell to the floor. Footage did not show any Harrah’s employees until they arrived to help plaintiff after her fall. Plaintiff alleged that there were two security guards assigned locations ten to twelve feet from the spill, and a bell captain’s station was twenty feet from the spill. Plaintiff claimed that from this evidence, employees should have heard the liquor bottle break. Plaintiff admitted at oral argument that Harrah’s did not have actual notice. The Appellate Division rejected plaintiff’s arguments on constructive notice. The Appellate Division stated, “plaintiff’s suggestion that Harrah’s employees should have heard or noticed the spill in time to prevent [plaintiff’s] fall is based solely on speculation relating to the position of those employees at the time of the spill and the audio conditions in the busy lobby.” The court also ruled plaintiff’s expert report, which opined that the employees should have heard the breaking liquor bottle, was inadmissible because it was not predicated on accepted industry standard or practices regarding the maintenance of hotel properties. Therefore, the Appellate Division held there was no genuine issue of material fact as to constructive notice and summary judgment was appropriate. We anticipate this case being relied upon by defendants going forward in actions when a hazardous condition only existed for a brief period of time. Thanks to Brendan Gilmartin for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News When Wrongful Death, Survival, and Sovereign Immunity Acts Collide (PA) October 27, 2017 < Back Share to: When a claim arises from the death of an individual, wrongful death and survival actions provide complementary damages. The wrongful death action compensates for losses sustained by living individuals as a result of the decedent’s death. A survival action allows for compensation as if the decedent had survived. Wrongful death damages include compensation for the amounts the decedent’s earnings would have contributed to his spouse, parents or child who are entitled to bring suit. A survival action allows the estate to recover the decedent’s loss of earnings during his life-span less the decedent’s personal expenses. In addition to these pecuniary losses, survival actions allow for pain and suffering, while wrongful death damages include loss of consortium such as loss of counseling and household services. These claims become more complex when the claim is against a public entity. Pennsylvania has legislation, the Sovereign Immunity Act, that defines when a public body may be sued. Although the sovereign may be sued for wrongful death and survival benefits, the type of recovery that is allowed is limited. In particular, the statute bars a parent or child of a decedent from recovering damages in a wrongful death action for the loss of the decedent’s future services and financial support. In Ewing v. Commonwealth of Pennsylvania Department of Transportation, the decedent was killed after an automobile accident in which another vehicle lost control on an icy road and collided with decedent’s automobile. The decedent’s estate brought wrongful death and survival actions against the Department of Transportation, alleging that the death was caused by the Department’s negligence in allowing water to accumulate and freeze on the road. The Court noted that the Sovereign Immunity Act applied to the wrongful death and survival actions against the Department of Transportation. Specifically, the Court stated that the damages sought must be authorized by both the Wrongful Death Act and by Section 8528(c) of the Sovereign Immunity Act. The same holds true for damages sought based upon the Survival Act. Significantly, the Sovereign Immunity Act more narrowly defines recoverable damages, in particular loss of consortium damages are not allowed. In analyzing whether the loss of services and support could be recovered from the sovereign , the Court looked to the Pennsylvania Supreme Court’s decision in Department of Public Welfare v. Schultz for guidance. In Schultz, the Pennsylvania Supreme Court held that loss of consortium damages could not be recovered by a parent or child of the decedent. The issue presented in Ewing, however, was whether the loss of a decedent’s services and financial contributions can be recovered as another “type of damages recoverable” under Section 8528(c) of the Sovereign Immunity Act. The analysis turned on the definition of “past and future earnings and earning capacity” as authorized by Section 8528(c) of the Sovereign Immunity Act. In agreeing with the Department of Transportation, the Court held that the services and financial support a decedent provided a child or parent did not constitute as “earnings” or “earning capacity” of the recipient. More appropriately, that loss would be characterized as a “loss of support,” which was not listed as one of the types of damages recoverable from a commonwealth agency. The Court emphasized that the Legislature could have listed “loss of support” as one of the types of damages recoverable from a commonwealth agency, but intentionally omitted such a recovery. Therefore, the Sovereign Immunity Act bars a parent or child of a decedent from recovering damages in a wrongful death action for the loss of the decedent’s future services and financial support. Thanks to Zhanna Dubinsky for this contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Vague E-mails not a "Signed Writing" under Copyright Act (NY) November 16, 2009 < Back Share to: Under the Copyright Act, the transfer of an exclusive license, including a license for distribution of a copyrighted work, must be effected through a signed writing from the copyright owner or its agent. The Copyright Act grants copyright owners a number of “exclusive rights,” including the right to distribute the work “to the public by sale or other transfer of ownership.” 17 U.S.C. § 106(3). Recently, in Weinstein Co. v. Smokewood Entertainment Group, LLC, plaintiff alleged defendant had conveyed the exclusive right to distribute a movie owned by the defendant through a series of confirmatory e-mails regarding the deal. When the defendant instead conveyed distribution rights to another company, plaintiff filed suit in federal district court, New York. Briefly, the substance of plaintiff’s e-mails were, “We are pleased to confirm our deal.” While the defendant’s responses were not outright rejections of plaintiff’s claims, the defendant commented on remaining, unsettled, details regarding the negotiations. The Court held that if a copyright owner's intention in writing is unclear -- even deliberately so -- there is no legally valid transfer. The purpose of the signed writing requirement is to ensure that the copyright owner deliberately transfers its ownership interest in such a way that provides the parties with a clear guide to their rights and responsibilities. Because the e-mails between the parties here failed to accomplish that, the Court dismissed the Complaint. If you would like more information regarding this post, please email mbono@wcmlaw.com . http://pdf.wcmlaw.com/pdf/einstein%20decision.pdf Previous Next Contact

News Judicial Panel Considers Motions to Consolidate All COVID-19 Business Interruption Claims May 1, 2020 < Back Share to: COVID-19’s impact has reverberated through almost every aspect of American life. The impact has been political, social, and economic. For businesses deemed “non-essential,” such as restaurants, hair salons, and gyms, the impact has been felt even greater. Governmental authorities on the national, state, and local levels have implemented various “stay at home” orders. These orders have, in turn, caused many businesses to lose significant income. As such, several businesses have filed actions seeking recovery of losses they sustained as a result of the orders. The businesses allege that they are entitled to recovery of their losses through their business interruption insurance policies. As few states have lifted their respective “stay at home” orders, it is likely more claims for business losses will come soon. Anticipating the influx of related litigation, counsel representing multiple policyholders in COVID-19 related lawsuits have filed motions with the Judicial Panel on Multidistrict Litigation for transfer and consolidation of the cases. The first motion, MDL No. 2942, filed April 20, 2020, seeks transfer and coordination or consolidation of two class-action suits filed in the U.S. District Court for the Eastern District of Pennsylvania with nine “Related Actions” filed in federal courts throughout the country. All actions referenced in the motion seek a finding that the “stay at home” orders trigger coverage under the plaintiffs’ business interruption insurance policies. The second motion, also MDL No. 2942, filed April 21, 2020 by counsel for the “Related Actions” referenced above, seeks to transfer pending and similar business interruption coverage litigation to the Northern District of Illinois before the Honorable Matthew F. Kennelly. This motion asserts that all of the pending actions involve the questions of whether COVID-19 causes “physical damage or loss to property” and whether COVID-19 was present on the insured property, or on property sufficiently connected to the insured property, to trigger coverage. In support, the motion asserts that claimants will present expert evidence on epidemiological modeling of COVID-19’s spread to determine its presence and impact. Both motions argue that consolidation is appropriate since the panel has consolidated other widespread cases litigated around the country. Specifically, the motions reference the panel’s consolidation of the 2,700 lawsuits related to the opioid crisis, which spanned several states and were brought against more than a dozen pharmaceutical companies. The motions maintain that consolidation is necessary because, regardless of the different insurers, policies are relatively standard. Although the panel has yet to decide a factually similar case, it has not hesitated to consolidate cases involving multiple districts and diverse defendants in the past. If the panel consolidates the business interruption claims, the future of business interruption claims—as a whole—will have much at stake in the court that hears the consolidated actions. The insurance defendants are due to respond to the MDL panel in May. Thanks to John Lang for his contribution to this post. Please email Heather Aquino with any questions. Previous Next Contact

News Property Owner and Snow/Ice Contractor Shielded Against Slippery Plaintiff (PA) July 27, 2017 < Back Share to: On July 24, 2017, the Superior Court of Pennsylvania summary judgment in favor of the defendants in Castaldi v. Light Acadia 11-89 et al.. The case arose out of an alleged slip and fall when on January 17, 2012, the plaintiff, Dina Castaldi (“Castaldi”), claimed she fell in the parking lot of a shopping center that was owned by Light Acadia 11-89, LLC (“Light Acadia”). She claimed there was a patch of ice that caused her to fall. Defendant Grass Works Landscape Management, Inc. (“Grass Works”) was retained by Light Acadia to perform snow and ice removal at the parking lot. Both Light Acadia and Grass Works filed for summary judgment on the basis of the hills and ridges and out of possession landlord doctrines. The trial court granted both of their motions. Castaldi then appealed. In Pennsylvania, the hills and ridges doctrine is designed to protect landowners from liability for generally slippery conditions resulting from ice and snow where the owner has not permitted the ice and snow to unreasonably accumulate. Courts recognize that to impose a duty on landowners to keep their walkways free of ice and snow at all times is an impossibility. Therefore, to make a case, a plaintiff must show: 1) that snow and ice accumulated to a degree to unreasonably obstruct travel and to constitute a danger; 2) that the property owner had notice of such condition; and 3) that the accumulation caused their fall and injuries. A plaintiff can also make a case if they show that an accumulation was from an “artificial origin”, i.e. plowing. The court agreed with the defendants and found the Light Acadia had no notice of snow/ice accumulation in the lot and that the accumulation was not large enough to constitute a danger. In addition, the court stated that Grass Works was covered by the hills and ridges doctrine because it was actively treating snow and ice with salt and thus was acting reasonably. The court also found that Light Acadia was not liable because it was an out of possession landlord, and owed no duty to third-parties. As such, Light Acadia was granted summary judgment on this point as well. Courts have recognized owning property as a benefit, on the whole, to society and seek to encourage. As such, several defenses have been established in common law and statute to protect landowners in certain situations. The hills and ridges and out of possession landlord doctrines are two examples of such defenses. It is important therefore to recognize early on the type of ownership that a client has in a property, their interest in the property, how they use it, whether they have leased it out, and other factors to see if they qualify for a certain defense. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Motion Practice to Resume in NY, Effective May 4, 2020 May 1, 2020 < Back Share to: On April 30, 2020, J. Marks and the New York Unified Court System issued an Order which allows the filing of opposition and reply papers on pending motions, as well as new motions on pending cases, effective this coming Monday, May 4, 2020. Hopefully, this Order represents the first step in resuming some degree of normalcy in the New York Court system. The Order does not allow for filings of new civil complaints, which makes sense -- to be sure, the "floodgates" need to be opened slowly. But they are opening, and this is a good sign. It is our understanding that in the next few weeks, judges and legal secretaries will be deciding all motions that are already fully submitted, so that when all these new motions are filed, motion calendars will be cleared. Clean slates will be essential to allow courts the time and manpower to address the likely deluge of new motions in May and June. The Order is silent on motion practice "deadlines," including summary judgment deadlines, which is a primary concern to plaintiffs and defendants alike. But taking this Order in conjunction with Gov. Cuomo's Executive Order 202.14 and Executive Order 202.8, any tolling of filing deadlines may be lifted as soon as May 7, 2020. So motion practice could return to "business as usual" this coming week. But even if motion practice returns to normalcy, we're not out of the woods just yet. A New York Law Journal article published earlier this week, Judge Marks relays that 1) virtual courts will be absolutely necessary in the coming weeks, and 2) the virtual court system, while functioning, is not yet able to handle "normal" caseloads. So it should come as no surprise that filings of new (non-essential) lawsuits are on hold for the time being. We're getting there, folks. We're not there yet, but we're getting there. Any questions, please email Brian Gibbons. Previous Next Contact

News Do As I Say, Not As I Do: Insurer Must Pay Benefits Despite Father's Misrepresentation May 15, 2008 < Back Share to: As parents, we counsel our children to be forthright and trustworthy in their business dealings. But some parents forget to take their own advice. In Rutgers Casualty v. LaCroix, Mr. LaCroix dutifully filled out an application for auto insurance but failed to list his 18 year old daughter as a licensed resident of his household in order to pay less in premium. His daughter was later involved in a serious accident while driving one of her father's cars. When the daughter submitted a claim for PIP benefits, Rutger's denied it and filed an action seeking a declaration that the policy was void ab initio and that it had no obligation to pay any PIP benefits. The New Jersey courts had previously upheld the denial of PIP benefits where a spouse was not listed as a resident member of the named insured's household. In that earlier case, the court had to decide whether the injured spouse was akin to an "innocent insured" who is entiled to coverage or whether the sins of a husband should be visited on his wife. Given the close relationship between adult spouses, the court refused to permit the wife to benefit from her husband's mispresentation and denied her PIP benefits. On the other hand, courts have awarded PIP benfits to an innocent party where, despite a named insured's misrepresentations, the injured party is unrelated to the named insured and is hurt in the named insured's vehicle. LaCroix was a close call. The motion court voided the policy ab initio and held that the daughter could not obtain PIP benefits based on her father's misrepresentations. The Appellate Division upheld the rescission but ordered Rutgers to pay the statutorily minimum PIP benefits. The New Jersey Supreme Court began by noting that recission was an equitable remedy, designed to promote justice and fairness. You see where this decision was going. The daughter was described as "a dependent child, newly licensed, only recently of driving age, and living with her parents...who placed her trust in her father" in insurance matters. Now we know that the insurer is in deep troube. Thus, in "these exceptional circumstances," the Supreme Court upheld the recission but ordered Rutger's to pay the statutorily minimum PIP benefits. Whether LaCroix is an anomaly remains to be seen. When pitting the equities of an injured party against an insurer, the personal interests frequently trump the corporate. On that level, LaCroix is not an ususual decision. However, the real danger is that LaCroix will result in a discomforting level of unpredictability in the battle against insurance fraud. http://lawlibrary.rutgers.edu/decisions/appellate/a4006-05.opn.html Previous Next Contact

News Court Cleans Up Definition of Employee Under Worker's Comp Law (NJ) August 24, 2012 < Back Share to: One of the key issues in dealing with workers' compensation benefits is who is considered to be an “employee” under the law. Recently, the Appellate Division determined that an employee is not necessarily someone who comes to clean your home. In Lukasik v. Holloway, the Appellate Division reversed the judgment of the workers’ compensation judge who found that a cleaning woman was an employee of the owners of the home where she was injured. The cleaning woman, Luz Lukasik, had contracted with the homeowners to clean their home once per week for the sum of $100. On the first day of her scheduled cleaning she was injured, sustaining a fractured hand and wrist. Thereafter, she returned to work, but had others do the cleaning at her direction. The workers’ compensation court found that Lukasik was an employee under the statute, and that she was entitled to more than 110 weeks of benefits due to her injuries. The Appellate Division reversed, holding that Lukasik was an independent contractor because she retained primary control over what work she would do, when she would do it, and how the work would be performed. Additionally, Lukasik was not substantially financially dependent upon the homeowners for her income, nor were her services somehow integral to the homeowners’ regular business. Lukasik was merely cleaning their home. While the Appellate Division specifically stated that it did not find that cleaning people are always independent contractors, this opinion does clarify where the line will be drawn. Thanks to Christina Fullam-Emerson for her contribution to this post. If you would like further information, please write to mbono@wcmlaw.com       Previous Next Contact

News Court's Decision Shows "LOVE" to Sculptor (NY) March 8, 2012 < Back Share to: Robert Indiana’s “LOVE” sculpture is very well known. It is displayed in parks and museums throughout the world, and its image has been reproduced on postage stamps and the like. Over the years, Indiana entered into a series of production agreements with John Gilbert, including a 2007 deal for the creation and production of a sculpture in Hindi script of the word love, which in Hindi, is “Prem.” Three versions of the sculpture were depicted in the contact, and contract also included “derivate works” of those three versions. The contract did not contain, however, any provision for a version with the English letters P,R,E and M, which a partner of Gilbert later designed. Gilbert claims that he showed an English Prem version to Indiana, and that Indiana approved the design. He also alleged that Indiana signed -- on a blank space on a page, and not the signature line -- a certificate of authenticity to accompany the sale of such a version. However, Indiana later disputed that he approved the design, calling it a “monstrosity.” Further, within a few days of signing the certificate, he denied that he was the creator of that piece. Gilbert then filed suit, with the causes of action sounding in breach of contract, as he wanted to be able to sell the English Prem version as an authentic Indiana design. Indiana eventually moved for summary judgment. The Court found that there was no dispute about the fact that the English Prem version was not included in terms of the contract. The Court also found that the Hindi version was completely different than the English version, could not be a derivative work, and therefore did not fit within the contract’s definition of “Licensed Works.” The Court also rejected claims that Indiana’s actions modified the Contract, particularly because the contract had a “merger clause” that provided “The Agreement contains the entire understanding between the parties.” Neither an oral approval of the design or a signature of the Certificate of Authenticity, even if not in dispute, would serve to modify the written agreement. The Court therefore dismissed the complaint -- and thus the sculptures cannot be considered authentic Indiana works. If you would like more information about this post, please write to Mike Bono at mbono@wcmlaw.com   Previous Next Contact