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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

News A.D. Defines Foreseeability Of Crime Necessary For Negligent Security Claims June 25, 2008 < Back Share to: In Maria T. v. New York Holding Company Associates et al, the plaintiff was sexually assaulted at gunpoint in her apartment. In her lawsuit, she claimed that the defendants failed to provide adequate security for the building where she lived. She asserted that the defendants failed to maintain a working lock on the sole entrance into the building. Defendants moved for summary judgment on the grounds that the assault was not foreseeable in that they were unaware of any criminal activity in the building other than the crime at issue and that the prior crimes relied upon by plaintiff were not similar to the assault and therefore did not demonstrate that the assault was foreseeable. In opposition, plaintiff relied upon police reports that reflected criminal activities that occurred in or near the building to establish that this crime was foreseeable. Plaintiff also retained an expert in the field of premises security who opined that the subject apartment building was in a police precinct with high rates of crime and the drug activity in the neighborhood attracted criminal elements to the neighborhood, thereby making the assault on plaintiff foreseeable. The Trial Court denied defendants' motion, citing a question of fact as to the issue of foreseeability. In reversing this decision, the Appellate Division, First Department held that building owners and managing agents have a common-law duty to take minimal security precautions to protect tenants from foreseeable criminal acts of third parties. In order to establish foreseeability, the criminal conduct at issue must be shown to be reasonably predictable based upon prior occurrences of the same or similar criminal activity at a location sufficiently proximate to the subject location. While plaintiff cited seven prior instances of criminal activity in and around the apartment building, ambient neighborhood crime alone is insufficient to establish foreseeability. In conjunction with the fact that none of them were similar to the sexual assault committed against the plaintiff, the crime perpetrated upon plaintiff was not foreseeable ie., reasonably predictable. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_05558.htm Previous Next Contact

News Property Owner Is At The Root Of The Problem, Not the City of New York October 22, 2021 < Back Share to: We present a case this week highlighting the liability of sidewalk maintenance between the City of New York and an abutting property owner. In Konstantinos Gallis v. 23-21 33 Rd., LLC, 2021 NY Slip Op 05549 (2d Dept. 2021), the plaintiff claimed personal injury after he tripped and fell on a raised part of sidewalk. The location of the fall was next to a tree owned by the City of New York. Plaintiff alleged the tree roots had raised the sidewalk allegedly causing the hazard. The premises owner 23-21 33 Road LLC defaulted on the Complaint, and plaintiff sought summary judgment on liability against the City of New York alleging the City allowed for the tree roots to grow and cause the hazard ultimately leading to plaintiff’s injury. The trial court denied the plaintiff’s motion and the Second Department affirmed that decision. The Second Department re-affirmed Administrative Code §7-210 and its precedent which shifts liability for defective sidewalk conditions from the City to the abutting property owner. Importantly, Administrative Code §7-210 covers any defects involving the negligent failure to repair or replace defective sidewalk flags, and failure to remove snow, dirt, or other materials from the sidewalk. The court determined the defective sidewalk conditions caused by growing tree roots is covered under Administrative Code §7-210 and noted an abutting property owner may cut or remove tree roots to repair sidewalks after obtaining permission from the City. Also important in the Second Department’s decision is that the exemption of Administrative Code §7-210 under subsection (b) allows for the City to be held liable if the property is “in whole or in part, owner occupied” and used for “exclusive residential purposes.” The reasoning behind this exemption is that the City should only be allowed to shift the burden of sidewalk defects to commercial properties and not “small residential properties” who would not have the resources for constant monitoring and repair of the sidewalk. This case highlights the specific variables wherein the City of New York can and cannot be held liable for any sidewalk defect or defect caused by inclement weather abutting a property owner’s building under almost any circumstances. The liability for a defect on the sidewalk is almost always shifted to the abutting property owner, and the caveat exception would apply to residential properties which are at least in part owner occupied. Thus, any commercial property owner should constantly monitor their sidewalks, and in the event of a defect caused by a tree, they should immediately contact the City of New York for permission to rectify the defect. Thanks to Raymond Gonzalez for his contribution to this article. Should you have any questions, please contact Thomas Bracken. Previous Next Contact

News New York Court Extends The Scope Of Protection Under Labor Law 240(1) November 4, 2021 < Back Share to: In Hensel v. Aviator FSC, Inc., the Second Department recently addressed the scope of “falling object” liability in deciding whether a plaintiff’s work entitled him to Labor Law §240(1) protection. Plaintiff in that case alleged that he was injured while loading heavy soccer boards into the back of a box truck. Plaintiff alleged that as he stood next to a forklift, the 100-pound board slid off the forklift and struck him in the head. Defendant moved for summary judgment, arguing that §240(1) did not apply to plaintiff’s accident under those circumstances. Plaintiff cross-moved for summary judgment and asserted that §240(1) liability applied. The Supreme Court agreed, granting Plaintiff’s cross-motion, and denying defendant’s motion. The Second Department affirmed, recognizing that "Labor Law §240(1) provides special protection to those engaged in the 'erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.’” It found that the Supreme Court “correctly concluded that the disassembly and removal of the boards from the soccer field was a partial dismantling of a structure and constituted “demolition” within the meaning of Labor Law §240(1).” (Citations omitted). The panel went on to state that “The plaintiff's role in hauling away the boards after they had been removed by the defendant was an act "ancillary" to the demolition and alteration of the field structure and protected under Labor Law §240(1).” The Hensel decision serves as a reminder that acts that are related or “ancillary” to the demolition of a structure will be afforded Labor Law §240(1) protection by New York courts. Thank you to Corey Morgenstern for his contribution to this post. Please e-mail Andrew Gibbs with any questions. Previous Next Contact

News Clear Assumption Of Risk Does Not Relieve Defendant's Duty Of Care June 11, 2009 < Back Share to: In Fourtounis v. MJB Service Station, Inc., the defendant moved for summary judgment based on the plaintiff's assumption of the risk and based on the theory that the plaintiff's actions were the sole proximate cause of the accident. The accident occurred when the plaintiff took his taxicab to the defendant's service station for repairs. The cab was placed on a mechanical lift located one foot off of the ground. As the car was being repaired, the plaintiff asked for a bottle of Windex to clean his windshield and stepped onto the lift. The mechanic then raised the lift five to six feet in order to drain fluid from the cab, with the plaintiff standing on the lift. The plaintiff, who at this point was talking on his cell phone, was unaware that the lift was raised. He concluded the phone call, stepped backwards and fell 5 to 6 feet to the floor, sustaining injuries. The court denied the defendant’s motion holding that although the plaintiff voluntarily placed himself in a hazardous situation, the mechanic was not relieved of his duty of care owed to the plaintiff because the mechanic knew the plaintiff was in the garage and near the lift. Moreover, an issue of fact exists at to whether the defendant was negligent and whether such negligence was a substantial factor in the accident. Thanks to Maju Varghese for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29236.htm Previous Next Contact

News Boxing Instructor Should Have Been Ready to Tumble September 27, 2013 < Back Share to: Owners and managers of sporting facilities have a duty to maintain their premises in a reasonably safe condition. But that does not mean that those using the facilities can ignore the conditions they have seen before. In Baccari v. KCOR, Inc., an experienced boxing instructor stepped into the ring to train his girlfriend during his spare time. During one of their training sessions, the instructor injured himself after stepping into a gap in the padding that was located under the canvas. The defendant moved for summary judgment, arguing that the doctrine of primary assumption of risk barred recovery. The Queens County Supreme Court disagreed, and denied the motion. However, the Second Department reversed, holding that the doctrine of primary assumption risk “includes risks associated with any open and obvious conditions of the playing field, including risks arising from ‘less than optimal conditions.’” Key to the court’s ruling was the fact that the boxing instructor was familiar with the very ring in which he was injured, and even saw one of his students step into the gap on a prior occasion. Baccari is not the only recent New York decision to absolve a defendant who maintained sporting facilities in less than ideal conditions. What is becoming increasingly clear in New York is that when sporting participants are aware that a facility is not as up to par as it should be, they should be prepared to use the facility at their own risk. Of course, property owners and managers should not use Baccari as a license to neglect their facilities. The recent cases denying recovery for those injured in poorly maintained facilities have done so in situations where the plaintiffs have used the facilities before and were aware of those conditions. If the plaintiff had been someone other than an instructor familiar with that particular boxing ring, it is unlikely that the court would have knocked the case out. Thanks for Mike Guavin for this post. If you have any questions, please email Paul at pclark@wcmlaw.com   Previous Next Contact