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News Soft Tissue Injuries Lead To Significant Verdict October 28, 2022 < Back Share to: On October 20, 2022, a federal jury in the United States District Court for the Eastern District of Pennsylvania awarded plaintiff, Kerry Ponder (“Plaintiff”) $1,800.000 for personal soft tissue, sprain / strain injuries arising from a motor vehicle collision where Plaintiff was driving on behalf of his employer. Though the at-fault driver had insurance coverage of up to $50,000, this did not cover the extend of damages claimed which included a $231,667 worker’s compensation lien and past / present work loss reflecting his annual salary of $50,000 prior to the accident. As such, Plaintiff initiated the instant lawsuit against Charter Oak Fire Insurance Company (“Charter Oak”) entitled Ponder v. Charter Oak Fire Insurance Company, No. 20-5037; 50:20-cv-05037 (2020), seeking UIM benefits from his employer’s $1,000,000 insurance policy to make up the difference. At trial, liability, overall, was not at issue, rather damages were disputed. After a two-day jury trial and subsequent two-hour deliberation, the million-dollar verdict was issued in favor of Plaintiff. Judge Jeffery Schmehl then molded the verdict to $958,000.000, reflecting the $50,000 third-party settlement, before the final judgment was issued. We suspect the issue of damages is likely to be disputed on appeal by Charter Oak. Ponder acts as a reminder to risk management and defense professionals alike that soft tissue injuries which may initially seem nominal can, in fact, lead to a six-figure payout where damages are supported. Moreover, it remains difficult to ever fully predict the results of a jury trial. Thanks to Kendal Hutchings for her contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Pennsylvania Court Declines to “Branch Out” and Impose a Duty December 11, 2020 < Back Share to: When is a legal duty undertaken to a third party? In Matthews v. Prospect Crozer LLC, et al., the Pennsylvania Superior Court examined this question in the matter of a falling tree branch and an injured plaintiff. The plaintiff was walking on a public sidewalk when a maple tree branch fell from above, striking the plaintiff, and causing severe injuries. The plaintiff sued numerous parties, including the property owner, as well as two landscaping companies who had contracts to service the property. At the trial court, the landscapers filed motions for summary judgment, arguing that the plaintiff failed to establish that each landscaper owed a duty to plaintiff. The plaintiff pointed to the respective contracts of the landscapers, one for snow removal, the other for landscaping services, as creating a duty. However, the contracts did not include provisions for the inspection and maintenance of trees on the property. The trial court agreed with the landscapers and granted summary judgment, and the plaintiff appealed. On appeal, the Court confirmed the trial court's decision, noting that there was insufficient evidence that the landscapers undertook a duty to the plaintiff. This case highlights the fact that Court will look to both the contract and the specific facts of the case when determining whether a duty of care exists. Thanks to Benjamin Ferrell for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News New York High Court Joins National Trend Affirming Denial of COVID-19 Business Interruption Claims March 1, 2024 < Back Share to: In Consolidated Restaurant Operations v. Westport Insurance Corporation , the New York Court of Appeals considered whether a claim for business interruption losses from the COVID-19 virus triggered policy coverage for “direct physical loss or damage to property.” 2024 WL 628047 (N.Y. Feb. 15, 2024). Westport issued an all-risk property insurance policy to Consolidated Restaurant Operations (“CRO”), which owns and operates various restaurants. Id. at 1. That policy covered business operation losses “directly resulting from direct physical loss or damage” to CRO’s property. Id. In the wake of the pandemic, CRO, like many other businesses, experienced significant loss of business from the presence of the virus and compliance with government restrictions. Id. CRO thus sought coverage from Westport, which Westport denied. Id. The lower courts ruled in favor of the insurer, finding that CRO’s claims did not allege a physical change, transformation, or difference to its restaurants sufficient to trigger the policy’s coverage. Id. at 2. The Appellate Division explained that “damage or loss to property” required “a direct physical loss of property, not simply the inability to use it.” Id . On review, the Court of Appeals opined that “physical damage” requires a “material physical alteration to property … that is perceptible, even if not visible to the naked eye.” Id. at 4. Further, the Court held that “direct physical loss” could not encompass loss of functionality without improperly conflating “direct physical loss” and “loss of use,” two distinct areas of coverage. Id. Rather, a “direct physical loss” must be limited to “an actual, complete disposition” of the property—like persistent contamination or total uninhabitability. Id. Conversely, the Court found that CRO alleged a temporary decline in use of its restaurants—not a complete shutdown of operations. Id. at 6. Moreover, CRO failed to show that the virus’s presence physically damaged its restaurants—such as by requiring repair or replacement of property. Id. at *7. The Court’s decision reflects a notable judicial trend in favor of interpreting “direct physical loss or damage” policy language strictly, particularly with respect to COVID-19 business interruption claims. Accordingly, the CRO case offers clear, favorable guidance for insurers in handling and evaluating such claims. Consolidated Restaurant Operations Inc v. Westport Insurance Corporation .pdf Download PDF • 304KB Previous Next Jessica Whelan Jessica Whelan Associate +1 267 665 0877 jwhelan@wcmlaw.com Contact

News Standoff On Wheels: Summary Judgment Denied In Rear-End Crash Case December 15, 2023 < Back Share to: In the dynamic landscape of traffic incidents, rear-end collisions stand as one of the most prevalent yet legally intricate scenarios, particularly within the context of New York state laws. In Bhattarai v Louie, 2023 NY Slip Op 06232 (2d Dept. 2023), the plaintiff was injured in a rear-end collision to his vehicle. The plaintiff moved at the end of discovery seeking summary judgment on liability and seeking to dismiss the defendant’s affirmative defenses for comparative negligence of the plaintiff. In New York, a plaintiff can successfully move for summary judgment and any argument for comparative fault can only reduce the damages award at trial. However, the defendant in this case submitted an Affidavit stating that the plaintiff’s vehicle made a sudden and unexpected stop in the middle of the block with no vehicle traffic or pedestrian traffic in front of him. The trial court denied the plaintiff’s summary judgment motion and the Second Department affirmed the trial court decision. “The defendants raised a triable issue of fact as to whether the defendant driver had a nonnegligent explanation for the collision ( see Sokolowska v Song , 123 AD3d 1004 ; Fernandez v Babylon Mun. Solid Waste , 117 AD3d 678 , 679). The plaintiff's affidavit failed to provide sufficient details to demonstrate, prima facie, that he was not comparatively at fault in causing the accident ( see generally Kanfer v Wong , 145 AD3d 985 ; Jimenez v Batista , 123 AD3d 668 , 669).” The Second Department concluded that the plaintiff’s sudden stop without any apparent reason was sufficient to cause a triable issue of fact precluding summary judgment against the defendant on the issue of liability. This case highlights a small shift in the Court’s usual analysis for rear-end accidents. Usually, this fact pattern provides a sufficient prima facie argument for summary judgment in plaintiff’s favor establishing liability against the rear vehicle. Here, the Second Department supported the trial court’s legal reasoning that a vehicle should not be allowed to make a sudden stop without any reason, and then assert complete liability on behalf of defendants when struck in the rear by defendant’s vehicle. The jury will be left to decide comparative fault based upon the facts presented by each party. Bhattarai v. Louie .pdf Download PDF • 163KB Previous Next Contact

News WCM Welcomes 14 New Attorneys! September 18, 2023 < Back Share to: [vc_row][vc_column][vc_column_text]Introducing WCM’s new Fall Class, Effective September 18, 2023. Long Island Ishra Glasswala is a graduate of New York Law School and was a senior editor on the Trial Competition Team. Ishra completed undergraduate studies at Montclair State University. Prior to joining WCM, Ishra was a judicial intern for judges in New York County Supreme Court and the United States District Court for the Southern District of New York and was a paralegal for a New Jersey personal injury firm. Ishra is fluent in Urdu. New Jersey Aron Goldberger is a graduate of Rutgers Law School and was a mock trial competitor and teaching assistant. Aron completed undergraduate studies at Thomas Edison State University. Prior to joining WCM, Aron was a judicial intern for a New York State Supreme Court judge and interned with a New York intellectual property firm. Aron is fluent in Yiddish and Hebrew. Bryan Gonzalez-Mejia is a graduate of Rutgers Law School and was a member of the American Constitution Society. Bryan completed undergraduate studies at Stockton University. Prior to joining WCM, Bryan was a legal intern with the Immigrant Justice Clinic and Rutgers Immigrant Community Assistance Project. Bryan is fluent in Spanish and elementarily proficient in French. Christina Herrera is a graduate of Rutgers Law School and was an editor for the Women’s Rights Law Reporter. Christina completed undergraduate studies at Montclair State University. Prior to joining WCM, Christina was a research assistant for a Rutgers professor and was a student associate in Rutgers Law Entrepreneurial Clinic. New York Julia Klein is a lateral hire with years of experience in the civil arena. Prior to joining WCM, Julia was a solo practitioner for a year with a focus on estate and family law, before then working as an associate for two well-known NY personal injury firms on both the plaintiffs and defense side. Julia is conversational in Spanish and spent a year traveling and volunteering at a non-governmental organization in Peru. Andrew Henriquez is a graduate of St. John’s University School of Law and was an editor for the Journal of Civil Rights and Economic Development. Andrew completed undergraduate studies at Brown University. Andrew returns to WCM after previously participating in WCM’s summer intern program. Prior to joining WCM, Andrew interned with the Office of the New York City Comptroller, Bureau of Law and Adjustment and was an assistant paralegal for a New York firm. Andrew was also a part of New York City Community Emergency Response Team. Pennsylvania Brian Noel is a lateral hire who joins WCM as counsel with extensive legal experience. Prior to joining WCM, Brian was a law clerk for a United States District Court, Eastern District of Pennsylvania judge; adjunct professor and associate director of academic and bar success initiatives for New York Law School; and was an assistant district attorney for the New York County District Attorney’s Office. Alexander Hubschmidt is a graduate of Villanova University Charles Widger School of Law and was vice president of the International Law Society. Alexander completed undergraduate studies at Boston College Morrissey College of Arts and Science. Prior to joining WCM, Alexander was a judicial intern for a Superior Court of Pennsylvania judge, research assistant for a Villanova professor and legal intern with a Pennsylvania personal injury law firm. Alexander volunteered at an Estonian-American children’s camp. Anand Tayal is a graduate of Temple University Beasley School of Law and was captain of the moot court team and member of the mock trial team. Anand completed undergraduate studies at Bucknell University. Prior to joining WCM, Anand interned with the Allegheny County District Attorney’s Office and was a legal intern with a Philadelphia personal injury firm. Domenica Tomasetti is a graduate of Villanova University Charles Widger School of Law and was a staff writer for the Villanova Sports Law Blog and representative for the Labor and Employment Law Society. Domenica completed undergraduate studies at the Catholic University of America. Domenica returns to WCM after previously participating in WCM’s summer intern program. Prior to joining WCM, Domenica was a judicial intern with the Delaware County Court of Common Pleas, an intern with the Office of the District Attorney in Delaware County and was a legal research assistant for a Villanova professor. Jack McGuire is a graduate of Villanova University Charles Widger School of Law and was a Trial Competition Team competitor and member of the Sports Law Society and Pro-Bono Society. Jack completed undergraduate studies at the University of Notre Dame. Jack returns to WCM after previously participating in WCM’s summer intern program. Prior to joining WCM, Jack was a judicial intern with the United States Bankruptcy Court: Western District of Pennsylvania. Jessica Whelan is a graduate of Villanova University Charles Widger School of Law and was a staff writer and managing editor of the Villanova Law Review. Jessica completed undergraduate studies at Pennsylvania State University. Prior to joining WCM, Jessica was a judicial intern with the Court of Common Pleas, First Judicial District and was a law clerk for several Philadelphia law firms. Martha Osisek is a graduate of Villanova University Charles Widger School of Law and was a representative for the Entertainment Law and Media Society and Intellectual Property Society. Martha completed undergraduate studies at Boston University Questrom School of Business. Prior to joining WCM, Martha was an extern for a Delaware County Court of Common Pleas judge, a legal intern with the Motion Picture Association and law clerk with a New Jersey firm. Martha has volunteered with a grief peer support group for elementary age children. Sydney Kockler is a graduate of Villanova University Charles Widger School of Law and was a member of the Corporate Law Society, International Law Society and Fashion Law Society. Sydney completed undergraduate studies at the University of Pittsburgh. Sydney returns to WCM after previously participating in WCM’s summer intern program. Prior to joining WCM, Sydney was a legal extern with the United States Attorney’s Office for the Eastern District of Pennsylvania, Pennsylvania Office of Attorney General, and Pennsylvania Governor’s Office of General Counsel.[/vc_column_text][/vc_column][/vc_row] Previous Next Contact

News Can Plaintiffs Pass the Parker Test? The Future of Asbestos Litigation (NY) October 18, 2018 < Back Share to: Back in 2017 in Matter of New York City Asbestos Litigation, the Appellate Division, First Department affirmed a trial court ruling that granted defendant Ford’s motion for to set aside the verdict. And the Court of Appeals is set to rule on the admissibility of expert opinion in the underlying trial. In the underlying action, decedent, Arthur Juni, passed away from mesothelioma allegedly caused by exposure to asbestos while he worked as an auto mechanic. Decedent worked for non-party Orange & Rockland Utilities from 1966 – 2009, servicing predominantly Ford vehicles. He was issued a respirator in 1988, but was exposed to asbestos for approximately 25 years prior to that. The jury awarded decedent’s wife and administratrix $3M for her loss and $8M to the estate for pain and suffering. The judge granted Ford’s motion to set aside the verdict for failing to quantify decedent’s exposure levels or provide scientific expression of his exposure level with respect to Ford’s products. To be clear, a plaintiff must prove not only that mesothelioma was caused by exposure to asbestos, but also that exposure was to sufficient levels of the toxin to have caused the illness. Due to studies that found mechanics working on friction products found no increased risk of mesothelioma and studies showing that only 1% of dust blown out from brake drums is comprised of asbestos, the trial court was not convinced with plaintiff’s experts that the cumulative exposure was sufficient to link decedent’s mesothelioma to the exposure. Relying on Parker v. Mobil Oil Corp. which addressed a claim of years of workplace exposure to benzene in gasoline as a cause of acute myelogenous leukemia, New York established a rule in toxic tort cases that, “an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation).” In a fractured opinion, the Court agreed that there is consensus in the scientific community as to general causation, i.e., the link between asbestos and mesothelioma, but felt decedent failed in proving he was exposed to a sufficient amount of visible fibers to cause the disease, or, in the alternative, that a sufficient amount of toxins existed in the inhaled “visible dust” to cause the disease. Given the complexity of the inquiry, the Court of Appeals heard oral arguments on decedent’s final appeal and is due to decide this issue within the next month. Associate Justice Feinman who authored the dissent at the 1st Dept. level, and has recused himself, but should his brethren follow his lead, an asbestos plaintiff would have to show (1) regular use by an employer of the defendant’s asbestos-containing product, (2) plaintiff’s proximity to that product, and (3) exposure over an extended period of time. Should the Court affirm the First Department, plaintiffs would have an additional hurdle in proving a specific relation to the exposure and the disease. In the instant case, the Court found the experts to be too general, subjective and conclusory to find that decedent’s exposure was a significant factor in causing his cancer. The battle of the experts in these cases have an unenviable job of using mathematical modeling or qualitative comparisons to recreate conditions, often decades after exposure and explaining their findings in lay terms for their non-medical audience in judges and jurors. The Court of Appeals then must balance the danger of accepting correlation as causation and creating an insurmountable standard that would deprive plaintiffs of their day in court. This decision could be a game changer in the future of asbestos litigation. Thanks to Mehreen Hayat for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Statute of Limitations and Pollution Exclusion at Play for Toxic Tort Coverage Analysis (PA) September 24, 2020 < Back Share to: The Western District of Pennsylvania recently determined that a number of insurers did not owe coverage for hundreds of bodily injury claims brought forth in a toxic-tort action. In Allegheny Ludlum, LLC. v. Liberty Mutual Insurance Company, et al., the District Court granted the defendants’ motions for summary judgment after determining that the plaintiff’s claims were brought too late and that a pollution exclusion barred coverage. The underlying lawsuit involved four employees of Arvin-Meritor, Inc. (“Arvin-Meritor”) claiming bodily injuries as a result of toxic chemical exposure against Allegheny Ludlum, LLC (“Allegheny”) . Included in the plaintiffs’ complaint, was a claim for wantonness. During the relevant time period, Allegheny was insured by Liberty Mutual Insurance Company (“Liberty”), Hartford Casualty Insurance Company (“Hartford”), Continental Casualty Company (“Continental”), and U.S. Fidelity and Guaranty Company (“U.S. Fidelity”). Ultimately, Allegheny settled the litigation in 2017 but later changed its position as to whether its insurers owed it coverage. In 2010, Allegheny told Liberty and Hartford that they did not owe it coverage for the lawsuit. In 2013, Liberty and Hartford set a cost-share limit for Allegheny’s defense costs prior to 2009. However, three years later, Allegheny claimed it wrongly interpreted the underlying action and consequently erred in negotiating the cost-share. As a result of all four of its insurers denying coverage, Allegheny filed a declaratory judgment action alleging failure to defend and bad faith. First, the District Court determined that Allegheny’s claims against Liberty and Hartford were time-barred. Liberty and Hartford argued that Allegheny’s declaratory judgment action was untimely under Pennsylvania’s statute of limitations of four years. Specifically, Liberty and Hartford argued that the statute of limitations began to run once coverage was disclaimed whereas Allegheny argued that the statute of limitations does not begin to run until after the termination of the underlying action. The District Court determined that Allegheny had a sufficient factual basis to conclude that Hartford and Liberty did not intend to provide coverage when they denied coverage back in 2010. Additionally, the District Court emphasized that all parties agreed on this issue at that same time. The District Court opined that “[t]here can be no greater guarantee against the potential of a claim failing within an insurance policy than when an insured itself takes the position that coverage is not obliged.” Additionally, the District Court determined that Allegheny’s bad faith claims were also barred under the two year statute of limitations for statutory bad faith and the four year statute of limitations for common law bad faith. The District Court determined that because the statute of limitations began to run when the insurer denied coverage, Allegheny’s bad faith counts were clearly time-barred as a matter of law. Second, the District Court determined that Allegheny’s claims against Continental did not apply as there was no “occurrence” that took place and that claims against U.S. Fidelity were also barred due to a pollution exclusion. The U.S. Fidelity policy specifically excluded bodily injury expected or intended by the insured that would not have occurred but for exposure to pollutants. Further, the District Court stated that the toxic tort in the underlying case was the exposure of employees to welding fumes containing toxic substances. Determining that “fumes” was listed in the policy’s definition of “pollutants,” the District Court determined that the exposure to the fumes clearly fell into the pollutants exclusion. As such, the District Court determined that the language of the policy related to this exclusion was clear and unambiguous and dismissed Allegheny’s claims against U.S. Fidelity. Overall, the main takeaway from this lawsuit is the significant barriers to coverage once an insured has conceded that no coverage is owed to it and later attempts to change its mind. Additionally, this case once against emphasizes the importance of clear and unambiguous language within an insurance policy, this time through the pollution exclusion. Thanks to Zhanna Dubinsky for her post. Please contact Vincent F. Terrasi with any questions of comments. Previous Next Contact

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

News Chatty Juror Creates Trial Havoc (NJ) January 7, 2016 < Back Share to: Every trial begins with an admonition that members of the jury should have no contact with the parties, the attorneys, or the witnesses. The instruction is given to ensure that the jury verdict is based on evidence admitted by the court and not by other outside, potentially prejudicial influences. What happens when a juror ignores the court’s instruction and has a brief interaction with an expert witness? Should a mistrial be automatically granted and the trial started anew? According to a recent New Jersey Appellate Division in Lukenda v. Grunberg, the trial court should determine whether the interaction improperly influenced the juror involved in event and whether the jury as a whole has been tainted. If not, the trial goes on. Lukenda begins with two young adults who got together for some Christmas cheer in the young woman’s family home. According to the defendant, her male guest had too much to drink and was injured when the defendant attempted to wrestle the car keys away from her suitor. In contrast, the plaintiff denied that he was intoxicated and claimed he was injured when the defendant delivered a “blindsided kick” to his knee, causing devastating injuries. Clearly, the Christmas get together was hardly a holy or peaceful night for the young love birds. Plaintiff’s expert orthopedist testified at trial, explaining in detail the lateral force necessary to inflict plaintiff’s injuries. During a break in the expert’s testimony, juror number two approached the doctor and quipped that “he thought the doctor was a great teacher and smiled.” Once defense counsel learned of the interaction, he moved for an immediate mistrial. The court questioned both juror number two and the expert witness about the contact between them. After juror number two assured the court that it would not affect his ability to be fair and impartial, the court admonished the juror to avoid any further discussions about the case until the start of deliberations and denied the motion. The Appellate Division ruled that “a new trial is not necessary in every instance where it appears that an individual juror has been exposed to outside influence.” Under those circumstances, the court’s inquiry should focus on the specific nature of the interaction, whether the juror imparted the outside information to other jurors, and whether the jury, as a whole, has been tainted by the information. Of note, the defendant never requested that the court question the other jurors to determine whether they observed or overheard any part of the interaction between the chatty juror and plaintiff’s expert witness. In Lukenda, the jury ultimately gave plaintiff a gift befitting the holiday season: it found the defendant liable and gave plaintiff a substantial award. If you have any questions, please email Paul at pclark@wcmlaw.com . Previous Next Contact

News WCM Obtains Defense Verdict in New York Labor Law Case. April 4, 2016 < Back Share to: Counsel Georgia Coats obtained a defense verdict in New York County on a Labor Law case. In Scekic v. Structure Tone, et. al., the plaintiff, our client’s employee, was ordered by the general contractor to raise a pipe previously installed by the plaintiff on the 1st floor of a clothing store, located along the 20 foot ceiling. Our client’s work was previously completed on the 1st floor and the only work left to be done was limited to the basement. The basement work did not require ladders and, accordingly, our client had sent back all ladders and scaffolds to its warehouse. The plaintiff used a ladder belonging to another trade and subsequently fell from that ladder when it broke. Structure Tone, the general contractor, settled with the plaintiff and proceeded at trial against its alleged subcontractors, including our client, on its claims for contractual indemnification. To trigger our client’s indemnification provision, the parties had to prove that our client or the plaintiff were negligent. At trial, we argued that our client could not have foreseen that the plaintiff would have been ordered by the general contractor to perform work in an area of the building that had been completed and that its decision to remove all ladders, which were not needed to complete the basement work, was reasonable. We also argued that the plaintiff’s use of another trade’s ladder was done at the general contractor’s direction and that he could not have known that the ladder was defective through his inspection of the ladder. The jury quickly returned its verdict finding that our client and the plaintiff were not negligent. Previous Next Contact

News Storm in Progress? Snow Removal Contractor Has Reasonable Time to Respond in NY December 28, 2012 < Back Share to: In the case of Espinal v. Melville Snow Contractors, 98 NY2d 136, 142-143, the New York State Court of Appeals, held that a snow removal contractor does not owe a duty of care to third-parties. However, in the years since the holding in Espinal, the trial courts have made it more difficult for a snow removal contractor to win summary judgement. In the case of Eugenia Smilowitz v. GCA Services Group, the Supreme Court, Queens County got it right. The plaintiff, an employee of St. Johns slipped and fell on snow and ice on the St. Johns campus. The defendant, GCA was responsible for maintaining the grounds, including snow removal. GCA moved for summary judgment, arguing that under the "storm and progress rule" a snow removal contractor cannot be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter. In opposition, the plaintiff tendered no evidence that GCA fell into any of the Espinal exceptions. More specifically. the plaintiff failed to prove that GCA created or exacerbated the icy condition that she slipped on. The Appellate Division, Second Department upheld the lower court's decision, holding that merely undertaking snow removal duties, as required by contract, cannot be said to have created or exacerbated a dangerous condition. Thanks to Ed Lomena for his contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News A Wall Is Really A Window: "Routine Maintenance" Re-Visited October 3, 2013 < Back Share to: Labor Law § 240(1), also known as the Scaffold Law, places absolute liability on owners and general contractors to provide a safe work environment to prevent accidents that flow from the risk of performing work from elevated heights. Section 240(1) specifically enumerates activities under its protection, which includes commercial window washing, but not routine cleaning. But the courts have long struggled with the concept of what constitutes “routine maintenance.” In Declercq v. WWP Off., LLC, plaintiff was washing the walls and window ledges inside a subway station. The job entailed using a ladder to apply a cleanser, letting it soak, then again using a ladder to hose down the area. The plaintiff was hosing down the area when the ladder kicked out from underneath him, causing him to fall 20 feet and sustain injuries. The plaintiff argued that because cleaning is specifically enumerated as a protected activity under Labor Law § 240(1), and he was not provided any safety device to prevent him from falling, the defendant building owner is liable under § 240(1). The defendant argued that they are not liable under § 240(1) because the plaintiff was involved in routine cleaning. The cleaning was routine because the plaintiff was cleaning the walls and window ledges, and not the windows. The court disagreed and held that the plaintiff was not performing routine cleaning because he was not cleaning residential or household buildings. And, cleaning under § 240(1) is not limited to cleaning windows. Section 240(1) protects workers while cleaning when it involves an elevated height without the proper safety equipment, which the court found is exactly what happened in this case. Declercq makes plain that where the worker requires a ladder (or works from a height), the marked judicial trend is to find 240(1) applicable even if the task is as mundane as washing walls. Thanks to Anne Mulcahy for her contribution to this post. For more information, please email Dennis Wade at dwade@wcmlaw.com . Previous Next Contact