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News Finding of "Alteration" and Notice Sufficient to Defeat Summary Judgment May 20, 2009 < Back Share to: In Fuchs v. Austin Mall Assoc. LLC, plaintiff's decedent was electrocuted while replacing the ceiling of an elevator located on property owned and/or managed by the defendants. The decedent's representative commenced an action against the defendants alleging common law negligence and causes of action pursuant to Labor Law sections 200, 240, and 241(6). The defendants then filed a motion for summary judgment in relation to plaintiff's claim for common-law negligence and for violations of Labor Law sections 241(6) and 200. The Supreme Court, Queens County, granted the defendants' motion. Plaintiff appealed. The Appellate Division, Second Department, reversed the Supreme Court's ruling and denied the defendants' motion in its entirety. The Court stated that the work the decedent was performing at the time of death constituted an "alteration," and therefore fell within the scope of Labor Law section 241(6). The Court also stated that because the defendants were aware that there were energized electrical circuits in the area where the decedent was working, they had notice of a dangerous condition. As such, even if they did not have control over the decedent's work area, the fact that they were aware of the condition precluded them from prevailing on summary judgment. Thanks to Brad Thelander for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03863.htm Previous Next Contact

News Imagine That! Scarce Funding Behind the Lack of FSMA Rules. October 2, 2012 < Back Share to: We have commented at length about the lack of new FSMA regulations. According to FDA chief Margaret Hamburg, the FDA is getting ready to issue the new regulations "soon." The problem is a lack of funding. With the elections but six weeks away, I wouldn't expect anything meaningful to happen before November. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Nothing To Weep About For Art Purchaser April 11, 2012 < Back Share to: The New York State Court of Appeals recently decided a dispute over the ownership of a 1,100 pound sculpture entitled The Cry, by Jacques Lipchitz, between the executor of the owner's estate and the purchaser (who purchased the sculpture from a man claiming to have been gifted the sculpture from the owner in 1997). In July 2004, the executor of the estate claimed to have sold the sculpture to an art gallery, while the purchaser claimed to have purchased the sculpture from another man in September 2005. The executor and the purchaser each filed petitions asking the Surrogate’s Court to resolve the conflicting claims of ownership. The Surrogate’s Court found in favor of the purchaser, noting that the decedent’s inter vivos gift of the sculpture was valid, and dismissed the executor’s petition. However, on appeal, the Appellate Division, First Department, reversed on the law, finding that the purchaser’s claim of ownership was barred by the statute of limitations because the sculpture was converted in 1998 when loaned to the French government. In Mirivsh v. Mott, the Court of Appeals reversed again and found that the Surrogate’s Court correctly ruled in the purchaser's favor because the purchaser established each of the elements of a valid inter vivos gift (intent, delivery and acceptance) by clear and convincing evidence, and, in any event, both parties had agreed by stipulation to allow the Surrogate’s Court would decide ownership of the sculpture on the merits. The court noted that the original owner’s intent to make a present transfer of "The Cry" was clear on the face of the gift instrument, which was in the form of a picture of the sculpture with a writing describing the piece and declaring that it was a gift (and did not necessarily require physical transfer or delivery of the sculpture itself). Thanks to Joe Fusco for this post. If you have any questions or comments, please email Paul Clark at pclark@wcmlaw.com Previous Next Contact

News Insurer’s Peer Review Insufficient To Deny Payment Of Medical Benefits (PA) June 21, 2013 < Back Share to: In Levine v. Travelers Prop. Cas. Ins. Co., the plaintiff sustained injuries in an automobile accident. Following the accident, the plaintiff underwent various medical treatments, paid for by her insurance company, Travelers Property Casualty. When the plaintiff attempted to attend her prescribed physical therapy, Travelers submitted this claim to a peer review organization that concluded the treatment was not reasonable and necessary. Additionally, sometime after this, the plaintiff attended an independent medical examination, which revealed that she had reached maximum medical improvement. Subsequently, Travelers denied payment. In turn, the plaintiff commenced an action against Travelers, which ultimately settled with Travelers paying for all of the plaintiff’s medical bills as well as attorney’s fees and costs. Following this settlement, the plaintiff resumed receiving treatment. When the providers tendered the bills to Travelers, without explanation, Travelers denied payment. The plaintiff then commenced her second action against Travelers. The trial court ultimately determined Travelers was in breach of contract. As such, Travelers was ordered to pay all outstanding medical bills, interest and costs. Travelers appealed arguing, inter alia, that the trial court had erred in awarding attorney’s fees since the Motor Vehicle Financial Responsibility Law (“MVFRL”) only allowed the recovery of attorney’s fees if an insurer had not invoked the peer review process. The Superior Court found in favor of the plaintiff. First, the court noted that the insurer had presented no evidence that payment was denied based on the peer review. Conversely, the court determined that the denial was, in fact, based on the independent medical examination. Further, the court rejected the plaintiff’s argument that the MVFRL made no distinction between peer reviews and independent medical examinations. The court explained the purpose of the peer review was to determine if medical care and bills were reasonable. Conversely, the purpose behind an independent medical examination was to determine whether a plaintiff’s injuries were related an accident. Thus, since the purpose behind these processes was different, therefore, the plaintiff was rightly entitled to attorney’s fees. Special thanks to Colleen Hayes for her contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News E-Discovery: Cost Shifting Limited March 1, 2012 < Back Share to: In the recent First Department case of U.S. Bank Nat’l Assn, et al. v. GreenPoint Mortgage Funding, Inc., 2012 NY Slip Op 01515, plaintiff appealed from a New York County decision that required plaintiff to bear the cost incurred in the production of electronic discovery. Prior to the First Department’s decision, New York courts generally required the party requesting the discovery to bear the cost. This held plaintiffs back from making large scale demands for e-discovery because they would have to pay the cost involved with e-discovery. This decision, following the well known Zubulake decision, held that “it is the producing party that is to bear the cost of the searching for, retrieving, and producing documents, including electronically stored information.” Although cost shifting is permitted, the First Department follows the factors set forth in Zubulake, 217 FRD at 222, in deciding who bears the cost of production. Those factors are: (1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production, compared to the amount in controversy; (4) the total cost of production, compared to the resources available to each party; (5) the relative ability of each party to control costs and its incentive to do so; (6) the importance of the issues at stake in the litigation; and, (7) the relative benefits to the parties of obtaining the information. The First Department states that the Zubulake factors are not a “check list,” but rather should be used as a “guide” by the trial court when determining whether or not the discovery request constitutes an undue burden or expense on the responding party. Interestingly, the Court concludes that “the adoption of the Zubulake standard is consistent with the long-standing rule in New York that the expenses incurred in connection with disclosure are to be paid by the respective producing parties and said expenses may be taxed as disbursements by the prevailing litigant.” It remains to be seen whether tens of thousands of dollars in e-discovery expenses can be taxed against a losing plaintiff and, even if allowed, defendants will never be able to collect it. However, the threat of taxing a losing plaintiff significant amounts of money in a judgment may still provide some deterrent to a plaintiff’s counsel seeking to use e-discovery as a weapon of mass discovery. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01515.htm   Previous Next Contact

News Be Careful with Work E-mail in NJ March 11, 2009 < Back Share to: In Stengert v. Loving Care Agency, plaintiff filed suit against her employer alleging a hostile work environment led to her constructive discharge. During discovery, counsel for the defendant had a search performed on the computer that plaintiff used while an employee in order to recover any deleted information. The search revealed temporary Internet files containing e-mails sent from plaintiff’s personal Yahoo account to plaintiff’s lawyer. Plaintiff took the position that those e-mails were protected by attorney-client privilege, and moved to restrain the use of the e-mails and to disqualify defense counsel. The Court looked to the employer’s communication policy that warned “any and all internet use and communication conducted on the employee’s computer is not private” and that also warned that all such files are considered part of the company’s business. The Court thus held that the plaintiff waived any privilege and denied plaintiff's motion. Thanks to Denise Ricci for her contribution. http://www.judiciary.state.nj.us/decisions/Stengart090305.pdf Previous Next Contact

News Insurer Not Estopped From Withdrawing ROR After Defending For Several Years (PA) June 24, 2016 < Back Share to: The Third Circuit Court of Appeals recently dealt with a challenge by an insured to the withdrawal of a Reservation of Rights in Nationwide Ins. Co. v. Shearer. The underlying claims arose from damage caused by the discharge of sewage and other waste by Nationwide’s policyholders, which had drained onto the Shearers’ property and subsequently contaminated their groundwater. The Policyholders were insured by Nationwide, who agreed to provide a defense but stated in Reservations of Rights letters that the claims may be subject to a pollution or biological deterioration exclusion and that it was not waiving its rights to later disclaim coverage. Nationwide subsequently filed a declaratory judgment action and moved for summary judgment, arguing that the claims were excluded from coverage. The policyholders did not challenge the applicability of the exclusionary language and instead claimed that Nationwide should be equitably estopped from withdrawing because it had been defending them for several years and that an untimely withdrawal would be prejudicial. The District Court rejected the policyholders’ arguments and awarded summary judgment in favor of Nationwide. The District Court noted that Nationwide’s reservation of rights letters made clear that its defense “shall not be deemed to be a waiver of or estoppel” of its rights under the policy. The District Court also rejected the policyholders’ claim that Nationwide was required to take steps to withdraw its defense within a certain period of time after issuing reservation of rights letters and that it was instead the burden of the insured to establish “actual prejudice.” Finding no allegations or evidence of prejudice, the Court held that there was no basis to estop Nationwide from asserting its coverage defenses. The policyholders appealed, and the Third Circuit affirmed. Echoing the lower court’s decision, the Third Circuit determined that Nationwide had preserved its coverage defenses in its reservation of rights letters. The appellate court also rejected the Policyholders’ claims that they would be prejudiced as a result of allowing the withdrawal of the defense at such a late stage in the case. Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News NJ Supreme Court Rejects Harassment Suit: "Just Say No" August 14, 2008 < Back Share to: In a rare victory for the defense in an action for sexual harassment, the New Jersey Supreme Court affirmed the dismissal of a case brought by two female students against the Princton Theological Seminary. The students alleged that they were harassed by an older alumnus of and contributor to the Seminary who resided in close proximity to the campus. In ruling against the students, the Supreme Court emphasized that the pair failed to demonstrate that they were victims of "severe and pervasive" harassing conduct. Further, in evaluating whether this burden was met, it stressed that the offending conduct should be measured against "a reasonable person" standard, not the subjective effect of the actions on a given plaintiff. But the most encouraging part of the opinon was the court's reliance on good, old fashioned common sense. With no legal citation given or required, the court noted: "it is important in that regard that neither of these women used her own authority to tell Miller to 'go away.' They cannot rely on the prospect of a money damages award from the Seminary to replace their own obligation to simply tell Miller that they had no interest in him romantically or even as a casual acquaintance." Well said. http://lawlibrary.rutgers.edu/decisions/supreme/a-64-07.opn.html Previous Next Contact

News School District Fails to Slip Away from Liability for Plaintiff's Fall (NY) November 27, 2019 < Back Share to: In Williams v. Island Trees Union Free Sch. Dist., a New York court addresses the level of evidence required for a defendant to claim it lacked constructive notice of a dangerous condition. In Williams, the plaintiff allegedly slipped and fell on clear liquid in the south cafeteria of Island Trees High School, which was under the control of the Island Trees Union Free School District. According to plaintiff, the accident occurred when she was walking in the cafeteria toward an "Aquafina" vending machine and both of her feet slipped out from underneath her. She then fell to the ground where she noticed a puddle of water which was approximately two inches wide and three to four feet long trailing from her spot on the ground to the vending machine. Plaintiff commenced an action to recover damages for personal injuries against the School District and Dover Gourmet Corp., the company with which the School District allegedly contracted with to stock the vending machine. Plaintiff alleged the School District was negligent in, among other things, maintaining the premises. The School District subsequently moved for summary judgment dismissing the complaint asserted against it. The New York Supreme Court granted the School District's motion. In response, plaintiff appealed. The New York Appellate Division, Second Department determined that the School District had failed to demonstrate, on a prima facie level, that it did not have constructive notice of the alleged water condition that caused plaintiff to fall. The court reiterated that "to meet its initial burden on the issue of lack of constructive notice, the defendant must offer evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell." In this case, the Court found that the School District failed to provide evidence regarding any specific cleaning or inspection of the area in question relative to the time when plaintiff's accident occurred. Accordingly, the Court reversed the lower court’s order. This decision serves as an important reminder that it is crucial for a moving party to adequately demonstrate that it lacked constructive notice of a condition that allegedly caused a plaintiff's accident when making a motion for summary judgment. Thank you to Caitlin Larke for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News A Recurring Condition ≠ Actual or Constructive Notice March 23, 2012 < Back Share to: In Pfeuffer v. New York City Housing Auth., the plaintiff, a police officer, slipped and fell on a staircase inside defendant's building on a wet substance he believed to be urine. He alleged that the defendant was negligent in permitting the stairway to remain in dangerous, defective, slippery, and wet condition. Plaintiff, and two fellow police officers, testified that the building was a known drug location and that the steps were generally dirty. The defendant's superintendent and the defendant's caretaker both testified that the staircase was inspected twice a day and that any liquids would be mopped up. Relying on the testimony that the debris on the stairs constituted a recurring condition, the lower court denied the defendant’s motion for summary judgment. The First Department reversed, finding that the defendant did not create or have notice of the condition of the staircase. It emphasized that a defendant cannot be expected to patrol its staircases 24 hours a day and that, even if the problem was recurring, the defendant addressed it by cleaning up garbage and daily spills and inspecting the stairs twice a day. The Court also noted that this was not a case where the defendant negligently failed to take measures to avoid the creation of a dangerous condition. Thanks to Gabe Darwick for his contribution to this post. 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 Superior Court Holds Fair Share Act Does Not Apply If Plaintiff is Not Found Liable (PA) April 8, 2021 < Back Share to: In Spencer v. Johnson, 2021 WL 1035175 (Pa. Super. Mar. 18, 2021), the Pennsylvania Superior Court issued an opinion with serious implications on the interpretation of the Fair Share Act. By way of background, Pennsylvania courts had previously long adhered to the doctrine barring recovery for contributory negligence, which held that if a plaintiff’s own negligence contributed even 1% to his injuries, he/she was completely barred from holding any other party liable. In 1976, the Legislature enacted the Comparative Negligence Act, which replaced this harsh law of contributory negligence by allowing a partially negligent plaintiff to recover from negligent defendant(s), provided that his/her negligence was not greater than that of the defendants. Under comparative negligence, a plaintiff’s recovery would be reduced by the percentage of his own negligence. However, under the doctrine of joint and several liability, the plaintiff could recover the full amount of the allowed recovery against any defendant against whom the plaintiff was not barred from recovery, even one who was only 1% liable. Then, in 2011, Pennsylvania adopted the presently prevailing law, the Fair Share Act, which modified joint and several liability so that, except in certain cases, only a defendant who has been found at least 60% liable could be held responsible for paying the entire verdict. In the most recent case addressing the Fair Share Act, Plaintiff, Keith Spencer, was seriously injured when he was struck by a vehicle driven by Cleveland Johnson (“Cleveland”) while walking in a marked crosswalk in West Philadelphia. Cleveland was intoxicated at the time of the accident. The vehicle he was driving was owned by Philadelphia Joint Board Workers United, SIEU (“PJB”), who employed Cleveland’s wife, Tina. PJB provided Tina with the vehicle as a company car, because she worked as an organizer and business representative for the union and needed to be available at any hour day or night. Evidence showed that Cleveland had driven Tina’s vehicle in the past, but that Tina was unaware that he was driving it at the time of the accident. On the day of the accident, she had driven the vehicle to her mother’s house, and unbeknownst to her, Cleveland had retrieved her keys and was attempting to move the car to an empty parking space when the accident occurred. Spencer’s Complaint asserted claims of: (1) Negligence against Cleveland; (2) Negligence against Tina; (3) Negligence/Negligent Entrustment against Tina; (4) Negligence/Negligent Entrustment against PJB; and (5) Negligent Hiring, Negligent Retention, and Negligent Supervision against PJB. The parties did not dispute that Spencer was not at fault and that Cleveland was negligent in the operation of the vehicle. At trial, the jury awarded Spencer $683,311.47 for past medical expenses, $7,300,000 for future medical expenses, $5,000,000 for non-economic damages for a total verdict amount of $12,983,311.47. The jury allocated liability as follows: Cleveland (36%), Tina (19%), and PJB (45%). The trial court denied in part and granted in part various post-trial motions and all parties appealed. On appeal, Spencer argued that the trial court erred when it refused to mold the entire verdict against PJB because its direct and vicarious liability (64% –based on PJB’s direct liability of 45% and it’s vicarious liability for Tina’s 19%) exceeded the 60% threshold of the Fair Share Act. Spencer argued that Tina’s negligence should be imputed to PJB because she was purportedly acting in the course and scope of her employment at the time of the accident. Although the jury made no definitive finding that Tina was acting as an employee/agent, because she was “continuously on call,” a jury could have reasonably concluded that she was acting in the course and scope of her employment when she drove the company car to her mother’s house on the day of the accident. The court concluded that the jury’s general verdict warranted a finding that PJB was vicariously liable for Tina’s negligence and therefore, the theory of joint and several liability applied because PJB’s and Tina’s combine liability exceeded the 60% threshold. Having resolved the issue in Spencer’s favor, the court nevertheless plunged ahead in finding another basis to mold the verdict. Looking to the language of the Fair Share Act, the court observed that at the language of Section 7102(a) provides the “general rule” that a plaintiff’s contributory negligence is not a complete bar to recovery. It then provides two scenarios based upon comparing the plaintiff’s negligence with that of the defendants. First, if the plaintiff’s negligence was a greater cause of his injuries than the defendants’ negligence, then the plaintiff’s recovery is barred. Second if the defendants’ negligence was a greater cause of the plaintiff’s injuries than the plaintiff’s own negligence, then the plaintiff’s recovery against the defendant will be reduced in proportion to the amount of the plaintiff’s own negligence. The court noted that neither scenario dealt with the circumstances in this case, where there had been no allegation of a plaintiff’s own negligence, let alone no jury finding of contributory negligence. Therefore, as an alternative basis for relief, the court would have concluded that the trial court erred in applying the Fair Share Act to this case because Spencer was never alleged or found to have contributed to the accident. Thus, PJB and Tina would still be jointly and several liable for Spencer’s injury. This holding is troublesome for several reasons. First, it reopens the possibility of a defendant found minimally liable, or even only 1% liable, being compelled pay the entire verdict if no liability is apportioned to the plaintiff. While those situations may not be common, they could be financially devastating when they do occur. Second, the court went well beyond the facts of the case and, after granting the relief requested, promulgated an alternative theory of relief that was not even sought by Spencer on appeal. As such, the court’s decision should properly be considered dicta. Third, the court’s opinion may also be deemed advisory because it was issued by only a two-judge panel. On April 1, 2021, both Tina and PJB filed Applications for Reargument en banc, and we have likely not heard the end of this issue. We shall monitor and advise. Thanks to James Scott for his contribution to this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact