News PA Continues to Take a Hard Line on Defaults. September 14, 2009 < Back Share to: In many states, a pre-answer default is of little moment and is easily vacated. Not so in Pennsylvania! As a trial court (in Firedex of Butler, Inc. v. Dicarjust has just confirmed, in PA, to vacate a default you need both an excuse for the default and a meritorious defense. In the absence of such proof, even if there is insurance, the default will not be vacated. Litigants and insurers should thus be equally vigilant. http://www.palawweekly.com/getarticle.aspx?id=30117 Previous Next Contact

News Making A Federal Case Out Of A $462 Claim December 14, 2007 < Back Share to: An insurer removed a suit to Federal court seeking recovery of a $462 dental bill by an insured. Plaintiff, an attorney, recently won a $45 million settlement from the same insurer. The insurer, fearing a new class action suit, retained a high-powered law firm, and removed the case to Federal court. http://www.law.com/jsp/article.jsp?id=1197540284638 Previous Next Contact

News NY Court Requires No Specificity Of Hazardous Condition In Premises Liability Case April 7, 2023 < Back Share to: In Diaz v. SCG 502, LLC, 2023 NY Slip Op 01779 (2d Dept. 2023), plaintiff alleged serious injuries from a slip and fall on an interior staircase in an apartment building. NY law permits dismissal of slip-and-fall cases if “the plaintiff did not know what caused the fall" (Lamour v. Decimus, 118 AD3d 851, 851; see Aleman v 760 8th Ave. Rest., Inc., 187 AD3d 1106, 1106; Kerzhner v. New York City Tr. Auth., 170 AD3d 982, 983). "[A] plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation" (Rivera v. J. Nazzaro Partnership, L.P., 122 AD3d 826, 827; see Madden v. 3240 Henry Hudson Parkway, LLC, 192 AD3d 1095, 1096). However, the New York appellate court recently let a plaintiff off the hook At her deposition, plaintiff testified she slipped and fell on a “wet step,” but did not know the precise type of liquid. While trial court granted summary judgment, the Second Department overturned that decision reasoning that the precise type of liquid was inconsequential to her claim of negligence of injury caused by a hazardous substance on a public space. Here, the defendant failed to establish, prima facie, that the plaintiff did not know what caused her to fall. “Contrary to the defendant's contention, the plaintiff's alleged inability to identify the "precise nature of the wet substance upon which she allegedly slipped and fell cannot be equated with a failure to identify the cause of her fall (Burrus v. Douglaston Realty Mgt. Corp., 175 AD3d 461).” The Second Department’s determination shows that a slip and fall on a wet surface does not require the claimant to specifically identify the hazardous substance that caused her to fall. Courts will allow a plaintiff to have her day in court so long as she can testify, generally, as to what caused her to fall in a premises liability claim. Thanks to Raymond Gonzalez for his contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News The Weather Outside is Frightful (NJ) May 9, 2019 < Back Share to: In Dixon v. HC Equities Associates, LP, the plaintiff tripped and fell on an icy sidewalk while walking to her state-issued car. Although she wore boots and walked cautiously, her feet slipped on at least one inch of snow. At her deposition, she confirmed the snow started after she arrived at work that day and continued until her fall. The plaintiff sued the defendant owner for negligence, arguing HC Equities Associates, LP breached its duty of care in failing to remove snow and ice on the facility’s sidewalk, which proximately caused her injuries. After the completion of discovery, the defendant owner moved for summary judgment. The argument was simple: there was no breach of a duty of care to the plaintiff because its duty to act in a reasonably prudent manner to remove or reduce the hazard (snow and ice) did not start until a reasonable time after the snow stopped. After oral argument, the trial court agreed that no rational jury could find defendant was negligent because the plaintiff fell during an ongoing snowstorm. Accordingly, the trial court granted summary judgment as a matter of law. The plaintiff appealed, arguing the duty should be expanded. At common law, residential and commercial property owners did not have a duty to maintain public sidewalks abutting their premises free from snow and ice. Skupienski v. Maly, 27 N.J. 240, 247 (1958). An exception to maintain abutting sidewalks was carved out for commercial landowners in Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 149-50 (1981), which Mirza v. Filmore Corp., 92 N.J. 390, 395 (1983) extended to snow and ice removal. A commercial owner’s responsibility therefore arises only if, after actual or constructive notice, he has not acted in a reasonably prudent manner under the circumstances to remove or reduce the hazard.” Mirza, 92 N.J. at 395. On appeal, the Appellate Division reaffirmed the long-upheld principle that commercial property owners are not liable for clearing snow during a snowstorm. See Bodine v. Goerke Co., 102 N.J.L. at 642-43 (E. & A. 1926) (holding that a property owner could not be liable for ailing to remove slush or ice from the entrance to a store while the storm was still ongoing). After noting it was undisputed that the snowstorm was ongoing when the plaintiff slipped and fell, the defendant was not obligated to remove snow and ice until the precipitation stopped and it had a reasonable time to remove it. Therefore, the trial court’s grant of summary judgment was affirmed. Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News GC Not Liable Where Equipment Selected, Supplied and Controlled by Sub (NJ) November 21, 2012 < Back Share to: Construction work exerts competing pressures on its participants. First, there's pressure to get the job completed as soon as reasonably possible; after all, time is money. On the other hand, quality work takes time and no owner or investor wants to accept work that is inferior or shoddy. Finally, safety is a significant concern, not solely because of a genuine concern for the safety of the workers, but also because accidents cause injuries and injuries result in claims, i.e. money. When a work related accident blossoms into a lawsuit, a key question is who had a duty of care to the injured worker? The owner? The general contractor? The subcontractor who employed plaintiff? According to the recent New Jersey Appellate Division decision of Tarabokia v. Structure Tone, the general contractor has no duty of care to the injured employee of a subcontractor under the circumstances of that case. In Tarabokia, the general contractor hired a major electrical subcontractor for an office building construction project. The general contract with the owner required the GC to remain responsible for overall jobsite safety. Consistent with industry practice, the GC hired an electrical subcontractor to perform the electrical work pursuant to a series of purchase orders, none of which made specific provision for an allocation of safety responsibilities. The plaintiff was required to use a specialized powder-activated power tool that drove anchors into concrete or steel. The Sub arranged for its employee to be trained on the proper use of the tool at the job site and required plaintiff to attend weekly safety meetings. Unfortunately, the plaintiff used the tool without wearing special anti-vibration gloves, leading to a serious polyneural compression injury. Plaintiff could not directly sue his employer because of New Jersey's worker compensation bar so his next best target was the GC. Did the GC have a duty of care to the plaintiff to ensure his safety on the jobsite? “No,” according the Tarabokia court. First, there was no contract between the GC and Sub that imposed an obligation on the GC to assume any safety obligations for the Sub’s employees. Second, the GC was unaware of the specific danger posed by the improper use of the highly specialized tool being used by the plaintiff. Third, the GC did not create the condition that caused plaintiff’s injury. Fourth, the danger posed by the tool was not readily apparent to the GC. Last, the Sub assumed control over the manner and means of plaintiff’s work and seemingly understood its obligation to accept overall responsibility for plaintiff’s work. The roles and responsibilities of the multiple parties working at a construction site are not always clear, particularly with respect to worker safety. Tarabokia confirms that the GC on the jobsite is not the presumptive safety supervisor of last resort, particularly for equipment selected, supplied and controlled by a subcontractor . If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com . Previous Next Contact

News Painful Verdict for Pain and Suffering (NY) July 23, 2020 < Back Share to: The Bronx has a reputation for plaintiff-friendly verdicts, and the case of Cabrera v Port Auth. of N.Y. N.J. (2020 NY Slip Op 03993) did not disappoint. Plaintiff, an employee at a Dunkin Donuts franchise at LaGuardia Airport, was involved in an accident with a salt spreading truck in the parking lot during a snowfall. After a jury trial, she was awarded future damages for only a period of three years, yet was awarded $12 million dollars. Fortunately for the defense, the First Department found many instances of reversible error warranting a new trial. First, the court truncated proof on whether the parking lot was public or private, which directly impacted whether the jury should been charged with the recklessness standard set forth in NY VTL §1103 or VTL §1163. This alone was enough for a new trial, but the court had made a trifecta of mistakes. The second error came in precluding defendant’s accident reconstruction expert from testifying. The Appellate Division found the lower court’s in limine inquiry of the expert concerning scientific studies was irrelevant to the subject of his testimony. Additionally, any deficiencies in the expert disclosure could have been remedied by limiting the testimony, not precluding it. Finally, a retrial on damages was necessary because the defense medical expert was improperly barred from testifying on the issue of whether plaintiff’s injuries were traumatically induced and whether the surgeries were necessary and appropriate. Any one of these errors would warrant a new trial, but all three, combined with a future damages award of $12 million dollars for a period of only three years, certainly required a new trial. This case confirms that unsupported and excessive jury verdicts will be scrutinized by the court. Thanks to Mehreen Hayat for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Wade to Speak at NYSBA Seminar September 18, 2009 < Back Share to: The New York State Bar Association has invited WCM partner Dennis M. Wade to lecture at Law School for Claims Professionals. Dennis will be lecturing and conducting a workshop on handling the premises liability claim on October 23, 2009. With assistance from associate Alison Weintraub, Dennis wrote a monograph entitled The Anatomy of a Premises Case which will be published in the course materials. Attached is a brochure with information about the program. If you would like more information about the program or the materials please feel free to contact Dennis or me. Sincerely, Shana Hughes Communications Director NYSBA Announcement Previous Next Contact

News A Triable Issue of Facts Exists as to whether a ‘Trivial Defect’ is Actionable March 21, 2016 < Back Share to: In Hutchinson v. Sheridan Hill House Corp., 26 NY3d 66 (2015), the Court of Appeals recently found “there is no minimal dimension test” or per se rule that a defect must be a certain minimum height or depth to be actionable. Instead, a court must look at all specific facts and circumstances in determining whether a defect is actionable. In Aviles v. Putnam Park Props. LLC, plaintiff lost her footing while descending an exterior three-step stairway of her apartment building. Plaintiff alleged a crack in the concrete of the otpe step and the condition of the bannister caused her fall. The building owner filed a motion for summary judgment arguing the crack in the step was not actionable as a matter of law since it was only one-half of an inch deep. In denying the motion, the court relied on Hutchinson, and found a triable issue of fact as to whether the crack coupled with the alleged bannister defect caused were the proximate cause of plaintiff’s injuries. In light of the recent Court of Appeals holding in Hutchinson, it has become increasingly difficult to move for summary judgment based on a trivial defect. Defendants should flesh out all potential arguments as to plaintiff’s proximate cause to present the strongest defense. Thanks to Caroline Freilich for her contribution to this post.                 Previous Next Contact

News Out-Of-Possession Landlord Escapes the Trap February 2, 2011 < Back Share to: < ![CDATA[Out-Of-Possession Landlord Escapes the Trap]]> Previous Next Contact

News Prime Time To Sue Amazon December 23, 2020 < Back Share to: Amazon has traditionally been exempt from various states’ product liability laws by successfully arguing that Amazon is not a “seller” when it comes to products sold by third-parties through Amazon’s website. Previously, a California Appellate Court overturned a lower court and ruled that Amazon.com played a pivotal role in every step of a plaintiff’s purchase of a replacement laptop computer battery on the online shopping website, making it potentially liable for the personal injuries caused when the battery malfunctioned. We blogged about this decision here. We note that Pennsylvania appeared to be well on its way to determining that Amazon was a “seller” in accordance with Pennsylvania strict liability law. Specifically, a panel of the Third Circuit explicitly held that Amazon was a seller and could be held liable for defective products under some scenarios. We blogged about that decision here. Since that decision, the Third Circuit granted en banc review, vacating the panel decision. The Third Circuit certified the question to the Pennsylvania Supreme Court. However, before a decision on the same was reached, the parties settled. Texas has joined the fray. In federal court, Amazon was sued alongside the erstwhile manufacturer of the alleged defective product. The manufacturer was a Chinese company and was unable to be served. At the close of discovery, Amazon moved for summary judgment, arguing that it was not a “seller” of products, it merely provided a marketplace for the sale. The district court determined that Amazon was indeed a seller under Texas law as it was “an integral component in the chain of distribution” and also, at one point, maintained physical possession of the product. Similar to the Pennsylvania case, the Fifth Circuit certified the following question to the Texas Supreme Court: "Under Texas products-liability law, is Amazon a 'seller' of third-party products sold on Amazon’s website when Amazon does not hold title to the product but controls the process of the transaction and delivery through Amazon’s Fulfillment by Amazon program?" This will be an interesting case to watch as Amazon is a dominant and ubiquitous force in the marketplace. Thanks to Matt Care for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Plaintiff’s Complaint Saved Notwithstanding Attorney’s Failure to Timely File Affidavit December 28, 2017 < Back Share to: A decision by the New Jersey Supreme Court requires judiciary administrators to begin notifying parties litigating professional malpractice claims of their statutory obligations to file affidavits of merit and to schedule hearings to determine whether those affidavits are satisfactory. In a unanimous ruling in A.T. v. Cohen, the court held that a medical malpractice case should not have been dismissed when an out of state attorney, admitted to practice in New Jersey but unaware of New Jersey’s filing deadlines, failed to file a timely affidavit of merit. The judiciary will now be responsible for notifying parties in malpractice actions of their deadline obligations. The judiciary will use its newly implemented e-filing system to electronically notify malpractice plaintiffs of their obligation to file an affidavit of merit within sixty days from the filing of defendant’s answer to the complaint. The judiciary will also notify litigations of the scheduling of mandatory conferences to determine the validity of the affidavits (known as Ferreira conferences). The Cohen case arose from the birth of a child and the alleged malpractice of doctors and a hospital leading to the child’s birth defect. The plaintiff’s attorney at the time failed to comply with the statute requiring the filing of an affidavit of merit. As a result, the trial court dismissed plaintiff’s complaint. The Appellate Division affirmed, but the Supreme Court reversed, holding that equitable relief should be afforded to plaintiff. The Supreme Court was persuaded that a presumably valid complaint should not be dismissed because of a lawyer’s non-compliance with a statute. Going forward, attorneys are on notice that disregarding the scheduling of a Ferreira conference will not provide a basis for relief from statutory obligations. Thanks to Michael Noblett for his contribution to this post.     Previous Next Contact

News Lack Of Inspection Records Found Fatal To New York Notice Defense (NY) February 25, 2022 < Back Share to: The ability of a New York premises liability defendant to pursue a notice defense may depend on the timing and evidence of property inspections. In Argueta v. 3251 Third Ave. LLC, the Supreme Court, Bronx County recently addressed this issue in a case where plaintiff was injured after being hit by a falling ceiling tile. The defendant moved for summary judgment, arguing that it did not have notice of a problem with the ceiling. In addressing the notice defense, the court stated: “To meet its initial burden on the issue of lack of constructive notice, the defendant must "offer some evidence as to when the area in question was last inspected relative to the [accident]" (citing Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598 [2nd Dept 2008]). The court ultimately found that the defendant could not meet its burden as it did not have any maintenance records for two years before the accident and failed to proffer evidence from someone with personal knowledge as to when the ceiling was last inspected. As such, the court held that defendant failed to establish that it did not have constructive notice of the allegedly dangerous condition and the motion for summary judgment was denied. The Argueta decision highlights the need for New York property owners to conduct regular property inspections and maintain inspection and maintenance records. The failure to do so can result in the loss of a notice defense in a premises liability action. Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact