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News PA District Court Rules On Plaintiff’s Defective Product Claims July 18, 2012 < Back Share to: In Sikkelee v. Precision Airmotive Corporation et al, an aircraft accident at the Transylvania County Airport in Brevard, North Carolina resulted in the death of David Sikkelee. The Plaintiff alleged that the accident was caused by a faulty carburetor and sued multiple parties involved in the manufacturing of the plane’s engine. Among the defendants was Lycoming Engines, the original engine manufacturer and division of industry giant AVCO Corporation. The plaintiff asserted negligence and strict liability claims to which Lycoming moved for summary judgment. Judge John Jones of the Middle District of Pennsylvania affirmed in part and denied in part the defendant’s motion. First, the court held Lycoming was a de facto manufacturer of the allegedly defective engine despite the fact the engine was subsequently modified (the installation of the faulty carburetor) by a separate company after it left Lycoming’s control. The court reasoned that even though Lycoming did not physically modify the engine, Lycoming was in exclusive control of the design and manufacture of the replacement component parts that were installed in the engine. Thus, this would subject Lycoming to potential products liability under PA law, and plaintiff’s claims should not be dismissed. Additionally, the court denied the defendant’s motion to dismiss the plaintiff’s negligence claims based, inter alia, on the following. Lycoming moved for summary judgment contending that the plaintiff failed to submit evidence that the defendant breached the applicable standard of care, thus, plaintiff’s negligence claims could not stand. The court had previously held that federal standards of care promulgated by the FAA apply in aviation cases such as this one and can be utilized by the plaintiff to show breach of duty. Since the plaintiff had submitted evidence of the breach of these federal standards, the court would not dismiss plaintiff’s negligence claims. Thanks to Colleen Hayes for her contribution to this post. http://www.pamd.uscourts.gov/opinions/jones/07v0886.pdf Previous Next Contact

News Call Your Next Witness - Matthew McCann April 26, 2023 < Back Share to: On this episode of the Call Your Next Witness podcast, we welcome fellow attorney, Queens Native and Regis High School alum Matthew McCann. Matt’s practice areas have varied greatly over the years, spanning white collar criminal defense, securities litigation, land use, cannabis, Special Education, and appellate practice, now at Moss & Colella, P.C. in Southfield, Michigan. Matt’s career and practice areas have evolved and grown in ways he never would have predicted as a younger attorney. And of course, we spent some time discussing Matt’s other “practice area” -- Battle Rap –both in NYC and Detroit. Listen here: https://lnkd.in/e8NbgmSd This may be the first ever lawyer-centric battle rap #podcast ever recorded. #wcmlaw For more information about the podcast, email Brian Gibbons. Previous Next Contact

News No Recovery for Bitten Broker (NJ) June 29, 2018 < Back Share to: In Ward v. Ochoa, plaintiff allegedly serious injuries after being attacked by a pitbull while performing an appraisal of a property. She brought suit against defendants Century 21 Worden & Green and Ken Song for her injuries. The trial court granted summary judgment in favor of defendants and dismissed plaintiff’s claims, leading to her subsequent appeal. Song had entered into a listing agreement with the homeowners with a view toward conducting a short sale of their foreclosed residential property. Song, a realtor employed by Century 21, was the listing agent and the buyer’s agent. It was Song’s responsibility to ascertain the number and breed of the dogs the homeowners owned during the period of the listing agreement. Plaintiff, a licensed real estate appraiser, was assigned to inspect and appraise the subject property. Plaintiff was contacted directly by Land Safe Appraisal Services to perform the appraisal of the property. She was unable to get in touch with the residential property owners, so she contacted Song to facilitate making the appointment for the appraisal. At her deposition, plaintiff testified that no inquiry was made as to whether the home was owner occupied or if dogs were on the premises. However, Song informed plaintiff that there was a dog on the premises prior to the date of the appraisal. The homeowners contended that their dog did not have any vicious propensities prior to this incident. When plaintiff arrived at the property for the appraisal, there were two dogs crated in the kitchen and an older, lethargic pitbull was in the bedroom. Plaintiff described the older dog as calm and docile and did not object to the presence of any of the dogs or request their removal. The first half of the appraisal was without incident. As plaintiff examined the exterior of the home, she observed that the dogs were now out of their crates and on the deck making noise. As plaintiff walked toward her car, one of the pitbulls charged her and she ran away in fear. At the foot of the driveway, plaintiff was repeatedly attacked by one of the pitbulls which resulted in her sustained a fractured radius and nerve damage requiring surgery. It was undisputed that plaintiff never had a written agreement with Century 21 or Song. Further, the court found that the defendants were in compliance with the Century 21 internal policy to ensure that pets were appropriately secured by homeowners, as evidenced by the fact that the dogs were restrained and crated at the time plaintiff arrived. The trial judge determined that plaintiff could not maintain a negligence claim because no duty of care existed between the parties. The appellate court on review determined that plaintiff was injured as a result of her employment with P&R. The record was devoid of any evidence to suggest that plaintiff was a “customer” of Century 21 or Song. Consequently, there was no legal relationship between the parties and no privity of contract. As such, the appellate court affirmed the trial court’s decision and plaintiff’s claims were dismissed with prejudice. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News The Not-So-Healthy Alternative: Products Liability and Exploding E-Cigarette Batteries (NY) April 26, 2019 < Back Share to: In Williams v. Madvapes, plaintiff was seriously injured after an electronic cigarette battery exploded and caught fire in her pocket. She filed a products liability suit against three companies in Queens County Supreme Court, alleging that they were negligent and failed to warn her of the allegedly defective lithium-ion “e-cigarette” battery. In the lawsuit, Williams’ attorneys alleged that the battery was only intended to be used in power tools and said that their client never received instructions on how to carry and store the product. Under New York law, there are three distinct claims for strict products liability, a mistake in manufacturing, an improper design, or an inadequate or absent warning for the use of the product. A manufacturer is under a duty to use reasonable care in designing its product when used in the manner intended as well as unintended but yet reasonably foreseeable. (See Robinson v Reed Prentice Div. of Package Mach. Co., 49 NY2d 471 [1980].) A manufacturer also has a duty to warn against latent dangers resulting from reasonably foreseeable uses of its product, whether intended or not. (See Liriano v Hobart Corp., 92 NY2d 232 [1998].) Defendants moved for summary judgment, arguing that the batteries were not intended for personal use, and only for use in power tools. In opposition, plaintiff contended that there were no warnings printed on the batteries or on the boxes in which the batteries were shipped, nor were any separate warnings packed with the batteries. The Court found that the evidence submitted by defendants did not sufficiently resolve all issues of fact such as, whether defendants knew or should have known that the batteries were not manufactured for use in e-cigarette units, whether it conducted proper due diligence as to suitability of these batteries for the purposes for which they were intended, and whether it had an obligation to provide appropriate warnings as to their use. As such, defendants’ motion was denied. Thanks to Tyler Rossworn for his contribution to this post. Please email Vincent F. Terrasi with any questions. Previous Next Contact

News Additional Insurance Claim Torched Based on Lack of Indemnity Agreement (NY) January 8, 2016 < Back Share to: In American Ins. Co. v Schnall, the Appellate Division, First Department recently dealt with the issue of whether blanket additional insured coverage could be triggered simply by an agreement between the parties to procure such coverage - without an indemnity agreement between the parties. Brooklynbaca, LLC, doing business as The Brooklyn Star operated a bar and restaurant in the Brooklyn neighborhood of Williamsburg. In order to better serve its (hipster) patrons, Brooklynbaca contracted with Scientific Fire Prevention Company to install a cooking exhaust duct in the restaurant. The service agreement contained an insurance procurement provision in favor of Scientific but Brooklynbaca did not assume Scientific’s tort liability. A fire erupted in the restaurant’s kitchen damaging the building owner’s property. American Insurance Company insured Brooklynbaca under a liability policy. Scientific sought coverage under the American policy’s additional insured endorsement which provided coverage to organizations that Brooklynbaca was “required by a written insured contract to include as an insured.” The parties became embroiled in litigation and Scientific sought a declaration that it was entitled to additional insured coverage. A New York State trial court denied the insurers’ motion for summary judgment and an appeal followed. The First Department reversed the trial court finding that although the service agreement contained an insurance procurement provision it did not require that Brooklynbaca assume any tort liability on the part of Scientific. As such, without a clause requiring Brooklynbaca’s assumption of tort liability, the service agreement did not constitute a “written insured contract.” The First Department thus found that Scientific was not entitled to additional insured coverage under the American policy. Thanks to Steve Kaye for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News NY Dealer Pleads Guilty In Fake Art Scheme September 20, 2013 < Back Share to: We previously posted about the indictment of Glafira Rosales, the art dealer indicted by the US Attorney's office in New York for her participation in an expansive scheme to sell fake art works to galleries, including the Knoedler Gallery. Rosales has now plead guilty to a number of significant felonies, including conspiracy to sell the fake art, money laundering, and tax crimes. Rosales claimed that she obtained the art -- purported to be painted by Modernist masters such as Pollack and Rothko -- from two anonymous collectors from Switzerland and Spain. Instead, all of the fake works were produced by a single painter who worked out of his garage in Woodhaven, Queens. The paintings were then treated so that they would have the false patina of age. According to the US Attorney's office, Rosales was paid approximately $33.2 million for the fake art. She agreed to forfeit that amount as part of her guilty plea, but it remains to be seen how much of that amount is actually recoverable. We were interested to see how the US Attorney's office was going to prove that the works were indeed fake, but that point is now moot. Indeed, during her plea Rosales admitted that the paintings were "fakes created by an individual in Queens." No doubt her statement will be used by the plaintiffs in the civil lawsuits filed against Rosales and the galleries, and the question of interest to now follow is whether the galleries are found liable. Please write to Mike Bono if you would like further information. Previous Next Contact

News $38.5 Million Punitive Damage Award Barred By Statute of Limitations (PA) July 21, 2017 < Back Share to: The Pennsylvania Superior Court recently addressed the $38.5 million punitive damages jury verdict in Wilson v. U.S. Security Associates (2015) - the highest award in Philadelphia in 2015. In 2010, two factory workers were fatally shot and a third seriously injured at the Kraft-Nabisco factory in North Philly. The defendant security firm was found negligent by a jury when two security guards abandoned their post in fear when they saw an armed woman - a suspended Kraft worker who returned to the company looking for revenge. The issue on appeal was the trial court’s decision to allow the plaintiffs—mid-trial—to reinstate a claim for punitive damages which was withdrawn by stipulation in exchange for a withdrawal of preliminary objections two years earlier. And by the time plaintiffs sought to introduce the punitive damages claim, the statute of limitations had expired. The plaintiffs argued that the claim was merely an amendment to the ad damnum clause—the section of the complaint outlining damages—not a new claim; and as such there was no statute of limitations issue. Unpersuaded, the court held that to prove punitive damages, the plaintiffs must prove “reckless, outrageous, intentional and/or wanton” conduct, which is an extra element and not merely an amendment to an existing claim. After finding punitive damages to be a claim instead of an amendment, the court moved to its statute of limitations analysis. Plaintiffs’ stipulation in exchange for the defense withdrawing their preliminary objections removed the claim from the complaint. Accordingly, the complaint must be read without the punitive damages claim. If the claim is not in the original complaint, the statute of limitations was never tolled by filing the complaint and the statute ran from 2010. Therefore, when the plaintiffs sought to reintroduce the claim at trial in 2015, the statute of limitations had already expired. To support this conclusion, the court looked to the settled law of voluntary nonsuits—voluntarily withdrawing an entire lawsuit. In voluntary nonsuits, the original complaint is treated as if it never existed; the statute of limitations is not tolled. The court reasoned there is “no legal basis on which the strategic withdrawal of one significant cause of action, punitive damages, should be treated differently than our settled controlling authority treats the withdrawal of an entire lawsuit.” And thus Wilson v. U.S. Security Associates was stripped of its accolade of Philadelphia Court of Common Pleas’ largest 2015 award. Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono if you would like more information. Previous Next Contact

News PA Court Dismisses Supermarket Slip & Fall Suit October 19, 2018 < Back Share to: The Pennsylvania Superior Court recently affirmed a trial court’s granting of summary judgment in favor of the defendant grocery store in a slip and fall case. In Barrios v. Giant Food Stores, plaintiff Rocio Barrios appealed the December 14, 2017 order granting of Giant’s motion for summary judgment. On June 8, 2011, Barrios claimed that she was shopping at a Giant grocery store when she slipped and fell on a transparent wet substance in the aisle. Employees from Giant admitted that they saw an orange-sized pool of clear liquid on the floor immediately following Barrios’ fall, however they were not certain of the origin. Barrios alleged that the liquid was the result of a meat refrigerator case that was leaking, as her fall occurred near the end of the meat aisle. Surveillance video confirmed that Barrios fell near the end of the meat aisle and that, after being alerted to her fall, Giant employees came to her assistance and cleaned the liquid with paper towels. The Superior Court explained the standard in Pennsylvania that, in order to recover damages in a slip and fall case, the plaintiff must prove that the store owner deviated from his duty of reasonable care under the circumstances and that the store owner knew or should have known that the harmful condition existed. Furthermore, the plaintiff must show that the store owner either helped to create the harmful condition or had actual or constructive notice of the condition. In this case, Barrios alleged that liquid came from a leaky meat refrigerator, and also cited repair records produced by Giant which showed that the meat refrigerator had been serviced by a repair company on April 26, 2011; June 10, 2011; and June 24, 2011; as support for her assertion that Giant had actual notice of the dangerous condition. The court reasoned that, even viewing the facts in the light most favorable to Barrios, the mere presence of water on the floor does not prove that it came from the meat refrigerator. Furthermore, even if the water on the floor came from the meat refrigerator, Barrios did not show that Giant had notice of the dangerous condition with adequate time to correct it. Barrios presented evidence of a repair order two months before her fall that was unrelated to any leaking issue, and also repair records for two dates after her fall. As the court pointed out, the fact that the meat refrigerator was serviced after Barrios’ fall did not constitute evidence that Giant had notice of a leak before Barrios fell. Thus, the court concluded that Barrios’ theory relied on conjecture and speculation, and affirmed the trial court’s granting of summary judgment in favor of Giant. Thanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Design Industry Standards Must Be Supported With Extrinsic Proof October 27, 2008 < Back Share to: United States Supreme Court Justice Antonin Scalia made famous the Latin term, "ipse dixit," when he derisively quipped that a statement is not necessarily true just because uttered by an expert. Employing similar logic, the Appellate Division, First Department recently overturned a jury verdict against the City of New York, which concluded that it negligently designed two swinging doors in a NYC high school. Plaintiff's expert testfied that the doors were poorly designed and in violation of applicable industry standards without any reference to written building codes or industry standards in effect when the building was constructed. Instead, the expert relied on his general experience and one written publication issued after the building was constructed. Jury verdicted overturned and case dismissed. http://www.nycourts.gov/reporter/3dseries/2008/2008_07951.htm Previous Next Contact

News NJ Insurance Rescinded For Misrepresented "Spouses" January 13, 2010 < Back Share to: New Jersey Manufacturers Insurance Company was granted dismissal of an uninsured motorist claim when its rescission of a policy was enforced. The insured driver had misrepresented in her insurance application that she was married when, in fact, she was living with her fiancé. The insurer presented evidence that it would not have issued the policy had it known that the two were not wed. Instead, she would have been referred to a subsidiary company and quoted a significantly higher premium. Thus, the misrepresentation was material to the decision to write the policy. The insured persuaded the trial judge that her misstatement was not a willful concealment to induce the insurer to issue the policy. However, in an unreported decision, the Appellate Division made clear that a misrepresentation of an objective truth that is material to the underwriting process will support rescission if the insurer relied upon it regardless of the insured’s motive for the misrepresentation. See Henriques v. New Jersey Manufacturers Insurance Co., 2009 WL 5125021 found at http://www.judiciary.state.nj.us/opinions/a2755-08.pdf If you would like more information regarding this post, please email Denise Ricci at dricci@wcmlaw.com . Previous Next Contact

News Homeowner Escapes Labor Law Liability for Contractor's Ladder Fall (NY) January 26, 2017 < Back Share to: Homeowners are free from liability under common law negligence, as well as under Labor Law §§§ 200, 240(1) and 241(6), to a contractor performing work at their residence where their general awareness of the state of the premises is insufficient to impute notice of an unsafe condition and where they did not direct or control the manner in which the plaintiff performed his work, create the allegedly dangerous condition that caused the accident, or provide the plaintiff with any of his materials or equipment. In Dasilva v Nussdorf , the plaintiff was allegedly injured when he fell from a ladder while painting a cottage located on the defendants' 16-acre residential estate. The cottage had formerly served as the estate caretaker’s residence and following his departure, was being renovated by the homeowners, who had hired the company that employed plaintiff. Plaintiff testified that the ground on which the ladder was placed was uneven, soft, and filled with debris as a result of ongoing landscaping. The ladder, which plaintiff erroneously believed was owned by defendants, sunk into the ground, causing him to fall. The lower court granted the summary judgment motion of defendants, dismissing plaintiff’s complaint which alleged violations of Labor Law §§ 200, 240(1), and 241(6), as well as common-law negligence. The court found that the exemption under the Labor Law §§ 240(1) and 241(6) for owners of single and two family houses applied in this instance where the homeowners established that the work being performed directly related to the residential use of the cottage and that they did not direct or control plaintiff’s work. The court also found that dismissal of the claims pursuant to common law negligence and Labor Law § 200 ( statutory version of the common law duty of an owner to provide employees with a safe place to work ) was appropriate where the homeowners also demonstrated that they did not create the alleged dangerous conditions or have actual or constructive notice of such conditions because they did not own the ladder or provide plaintiff with any of his materials or equipment. With respect to the allegedly uneven and soft ground filled with debris, the defendants established that they did not create the condition and although they may have had general awareness that the ground was uneven and soft, such awareness was insufficient to impute notice of an unsafe condition. The Appellate Division, Second Department agreed with the ruling of the Supreme Court and accordingly, affirmed its decision regarding the dismissal of plaintiff’s complaint. Thanks to Lauren Tarangelo for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Who Said What? NJ Court Decides Hearsay Within Hearsay in Medical Records Can be Admissible May 3, 2012 < Back Share to: May an expert rely solely on a “hearsay within hearsay” statement in medical records when forming an opinion as to a defendant doctor’s negligence? The answer, according to the recent New Jersey Appellate Division decision in Konop v. Rosen is yes, if it meets certain hearsay rule exceptions. In Konop, the plaintiff's colon was allegedly perforated during a colonoscopy performed by Dr. Rosen, and plaintiff sought to introduce expert testimony as to the cause of the perforation. Plaintiff’s expert opined that “defendant deviated from accepted medical standards by failing ‘to ensure that the patient was adequately sedated and not moving during the procedure and by [failing] to stop the procedure when excessive patient movement occurred.’” The expert based this opinion exclusively on a notation in the hospital consultation report, written by a first-year attending physician, which included a statement allegedly made by Dr. Rosen herself that the patient was moving during the colonoscopy. After an evidentiary hearing, the Law Division judge opined that the notation in the report was inadmissible hearsay, ordered it redacted, and granted summary judgment to Dr. Rosen. In his oral opinion, the judge cited the unreliability of the notation as underlying the finding of inadmissibility. On review, the Appellate Division reversed the ruling and remanded the matter. The appellate panel concluded that the medical record constituted a business record, and that the only issue as to admissibility was whether the disputed statement met one of the hearsay exceptions. The panel ultimately found that, if plaintiff could prove that Dr. Rosen made the statement found in the hospital consultation notes, the statement would fall under an exception to the hearsay rules, and would be admissible. The decision as to whether Dr. Rosen in fact made the statement at all would be a question for the jury, and would be determined based upon the preponderance of the evidence. While this decision does not change the rule that an expert’s opinion may not be solely based upon an inadmissible hearsay statement, it does clarify the manner in which such statements that would otherwise be hearsay may be made admissible. Thanks to Christina Emerson for her contribution to this post. If you would like further information please write to mbono@wcmlaw.com .   Previous Next Contact