News Readily Observable (NY) September 23, 2022 < Back Share to: In a recent decision, Williams v. E And R Jamaica Food Corp., the Second Department held that " a condition is open and obvious if it is ‘readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident." The Appellate Court granted defendant’s appeal in matter where plaintiff sustained personal injuries as a result of tripping and falling on a rolled up mat in the supermarket. The Appellate Court held that the defendant established entitlement to summary judgment by submitting evidence that the rolled-up mat was known to plaintiff prior to the accident as it was open and obvious, and thus was not inherently dangerous. Thanks to Marium Sulaiman for her assistance with this article. Should you have any questions, contact Tom Bracken. Previous Next Contact

Anand P. Tayal Associate Pennsylvania apandittayal@wcmlaw.com +1 267 665 0014 Professional Experience Anand Tayal litigates general liability actions including premises liability, construction defect claims, and motor vehicle accidents. His work includes all stages of litigation including investigation, fact analysis, drafting pleadings and motions, depositions, conducting legal research, attending hearings, arbitrations, and mediations, and preparing for trial. During law school, Anand clerked for a personal injury firm and gained valuable insight into Plaintiff side personal injury litigation. Honors and Distinctions While in law school, Anand was the Captain of the Jessup Moot Court Team and received an award for being a Top 10 oralist at the Jessup Regional Rounds in Washington D.C. Recipient of the Beasley Law Faculty Scholarship Prior to law school, Anand was on the executive committee of the Mock Trial Team at Bucknell University. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Temple University Beasley School of Law B.A., Bucknell University Bar Admissions Pennsylvania New Jersey

News Office Party Gone Wild: No Liability Where CFO Strikes Co-Worker December 1, 2011 < Back Share to: In Milosevic v. O’Donnell, plaintiff sued to recover for injuries she sustained after she was struck by her company’s CFO at an office party. Plaintiff sued her employer under the doctrine of respondeat superior, seeking to hold it responsible for the CFO’s actions. Plaintiff also sought to hold her employer liable in negligence for sponsoring the event, claiming that there was a “culture” of alcohol use at off-premises, company events. With regard to the respondeat superior claim, the court held that there was no allegation that the CFO was acting within the scope of his employment when the attack occurred or that a work-related issue precipitated the assault. Rather, the evidence showed that the CFO “lost control of his senses” and attacked plaintiff “for no apparent reason.” With regard to plaintiff’s claim that the defendant negligently sponsored the office party, the court held that there was no evidence that the defendant knew of the CFO’s violent propensities when intoxicated or the possibility of an assault. Therefore, the appellate court affirmed the lower court’s dismissal of the negligence and "intentional and/or wanton conduct" causes of action against the employer. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08633.htm Thanks to Gabe Darwick for his contribution to this post. Previous Next Contact

News Warm Wishes From Our WCM Family To Yours December 23, 2016 < Back Share to: As 2016 draws to a close, WCM would like to wish you and yours a very happy holiday season and a healthy and joyful New Year!       Previous Next Contact

News If You Make Something, Can You Destroy It?–Visual Artists’ Exclusive Right To Destroy (or Preserve) Their Works (NY) October 8, 2021 < Back Share to: Generally, when you buy a product, you can do what you want with it. But if you buy a work of art, your rights in respect of that work may be limited. For hundreds of years, the French legal system has recognized artists’ “moral rights,” or “le droit moral.” The concept of moral rights protects the personal, artistic, and reputational value of a work, rather than its purely monetary value, for the benefit of its creator. The American legal system protects artists’ moral rights through the Visual Artists Rights Act of 1990 (“VARA”), 17 U.S.C. §106A, an amendment to the Copyright Act. Under VARA, visual artists have the rights of “attribution and integrity,” meaning they have the right to claim authorship of their works, the right to “prevent the use of his name...as the author of the work of visual art in the event of distortion, mutilation, or other modification of the work which would be prejudicial to his honor or reputation” (i.e., he may “disavow” a work). Artists also have the right to prevent destruction of their works, among other things. Many states have adopted their own versions of VARA to protect artists’ moral rights. Notably, under a correlating California law, California Civil Code §987(c)(1) states that “No person, except an artist who owns and possesses a work of fine art which the artist created, shall intentionally commit, or authorize the intentional commission of, any physical defacement, mutilation, alteration or destruction of a work of fine art.” In other words, while VARA gives artists the right to prevent the destruction of their works, the California statute goes even further by giving artists the right to intentionally destroy their own work. In either event, the theory behind these rights is that an artist should be in control of the eventual fate of their work. VARA issues typically arise in cases where artists wish to preserve artwork in public spaces, such as sculptures in parks or murals on buildings. However, VARA rights are just as relevant in legal disputes involving smaller-scale paintings, drawings, or privately-owned sculptures. VARA may also preempt state law in certain cases and the issues can be complex. As such, art galleries, collectors, artists, and fine art insurers should be aware of the implications of VARA and other related statutes in connection with the creation, sale, and ownership of works of fine art. Thank you to Alexandra Deplas for her contribution to this post. Please email Andrew Gibbs with any questions. Previous Next Contact

News Say Cheese! Photo Taken with Mobster not Actionable (NY) August 27, 2009 < Back Share to: Plaintiff attended the trial of the notorious mafia boss, John Gotti, and after court broke for the day, plaintiff decided to help Gotti maneuver through the throng of photographers and into Gotti’s car. A freelance photographer then took a picture of plaintiff holding Gotti’s arm. The photo was ultimately used in an advertisement for the television program, Inside the Mafia, and the ad appeared in posters throughout New York City. Plaintiff filed suit in Alfano v. NGHT, et al, alleging that the unauthorized use of his image violated his privacy. The Court held, however, that the New York statute prohibiting the “commercial appropriation” of a living person’s image did not apply because of the “newsworthy” nature of the trial that was being photographed. The Court also held the advertisement was an “incidental use” of the image to illustrate the newsworthy content of the television program. The plaintiff’s other claims were also rejected and the court dismissed the complaint. Previous Next Contact

News Opposition to MSJ Requires Rebuttal Evidence, not just Rebuttal Allegations (PA) February 8, 2019 < Back Share to: American Southern Insurance Company, Inc. was victorious recently when its summary judgment decision regarding a contractual indemnification dispute was upheld on appeal. In American Southern Ins. Co. v. James A. Halbert , et al., PA Superior Court, No. 504 MDA 2018, the Pennsyvlania Superior Court upheld the trial court’s granting of summary judgment in favor of American Southern. The underlying case involved a performance surety bond for public improvement in North Cornwall Township, PA. Back in 2006, American Southern had entered into an indemnity agreement with the Halbert family (on behalf of the Oaklea Corporation) wherein the Halberts agreed to indemnify American Southern from any claim or liability arising from the issuance of a performance bond. Subsequently, American Southern issued a performance bond in favor of North Cornwall Township to secure completion of improvements for local development by the Oaklea Corporation. In July 2016, the Township informed American Southern that Oaklea refused to respond or perform certain improvements that were demanded by the Township. The Township demanded compensation from American Southern, who in turn, demanded indemnification from the Halberts. The Halberts responded that the improvements demanded by the Township were unnecessary. In October 2017, American Southern moved for summary judgment asserting that there were no genuine issues of material fact in dispute and that American Southern was entitled to indemnification against the Halberts, as a matter of law. In response, the Halberts cited their Answer and defense that the improvements were unnecessary and also argued that the indemnification agreement was an unconscionable contract of adhesion. The trial court concluded that Halbert failed to show that the improvements were unnecessary and that the agreement was not a contract of adhesion. The Halberts appealed. On appeal, the Superior Court explained that the Pennsylvania rules governing summary judgment explicitly prohibit a non-moving party from merely relying on the allegations or denials of the pleadings, thus rendering the Halberts’ position deficient. The Halberts conceded that an operative provision of the indemnification agreement granted American Southern the exclusive right to determine whether claims such as the ones brought by the Township should be settled or defended; thereby nullifying Halberts’ repeated defense that the demanded improvements were not necessary. Furthermore, while the court entertained the Halberts affirmative defense that the indemnification agreement was a contract of adhesion, it concluded that the Halberts failed to cite to any evidence detailing the circumstances that would support their assertion that the contract was, in fact, a contract of adhesion. Ultimately, the Superior Court denied the Halberts appeal and affirmed the granting of summary judgment in favor of American Southern, emphasizing the Halberts’ failure to cite evidence of record that would support their claims. Thanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Lawyer Inattentiveness Not Extraordinary Enough To Waive Notice for Tort Claims Act (NJ) March 18, 2013 < Back Share to: In common law, a subject could not sue the sovereign for a tort action. New Jersey courts abrogated this common law to the displeasure of the Legislature. The Legislature responded by re-establishing sovereign immunity - but allowing limited exceptions when a person could sue a public entity. However, in an effort to minimize litigation against public entities, the TCA requires a claimant to give timely notice, i.e. within 90 days so that the claim can be investigated and perhaps resolved outside litigation. A tardy notice can only be excused for "extraordinary circumstances" - and then only if presented within one year after accrual of the claim. This notice provision has been the subject of much scrutiny with many theories advanced to attempt soften its effects. In D.D. v. UMDNJ, the New Jersey Supreme Court addressed two common themes: 1) late notice should be excused because of lawyer inattention, either independently offered or in conjunction with a claim that the plaintiff's medical condition influenced the ability to give timely notice; and 2) whether oral notice of the claim could be considered substantial compliance. In short, a divided Supreme court said, no and no. The majority opinion hewed to the legislative intent that immunity is the general rule and liability is the exception. Guided by this, the Court held that it was not authorized to grant leave for late notice in a case based upon disclosure of a participant's medical history in connection with a World AIDS Day program. Although the plaintiff described physical and emotional effects related to the disclosure, the Court did not consider her circumstances to meet the standard of "severe and debilitating." Moreover, combining this with the foibles of her attorney did not create exceptional circumstances. In fact, the Court found that a claim of attorney incompetence, inattentiveness or malpractice was not an extraordinary circumstance to justify late notice. Thus, medical complaints that do not demand immeidate attention and did not significantly interfere with the pursuit of a claim will not excuse late notice even if coupled with lawyer inattention. Finally, the required notice must be written. The Court ruled that oral notice is simply not substantial compliance underof the Act. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Open And Obvious Condition Of Exterior Step Extinguished Defendant’s Liability (NY) February 23, 2023 < Back Share to: Generally, a New York landowner has a duty to maintain his or her property in a reasonably safe condition. However, there is no duty to warn of or protect against conditions that are not inherently dangerous and are “open and obvious.” A condition is deemed “open and obvious” if it is readily observable by those reasonably using their senses given the surrounding conditions at the time of the alleged accident. The resolution of this issue depends on the specific facts of each case. In Martinez v. Fairfield Hills E., LLC, the Appellate Division, Second Department recently addressed these issues in a case where plaintiff alleged that she was injured while descending exterior steps on the defendant’s premises. The lower court granted the defendant’s motion for summary judgment, finding that the condition of the step upon which the plaintiff allegedly fell was both open and obvious and not inherently dangerous. The Second Department affirmed, finding that that the condition of the step was readily observable had plaintiff reasonably used her senses given the conditions at the time of the alleged accident. The Court based this holding on plaintiff’s deposition testimony in which she stated that she ascended the step moments before her alleged accident without incident, that the accident took place on a sunny day, and there was nothing obstructing her view of the step. The takeaway from Martinez is that premises defendants should explore an “open and obvious” defense where the allegedly dangerous condition was readily observable to a plaintiff at the time of his or her alleged accident and plaintiff had used that part of the property before without incident. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

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

News PA Court Clarifies When Use Of Plaintiff's Behavior Can Be Used In Products Liability Cases September 28, 2010 < Back Share to: In a recent products liability case, the PA Superior Court clarified when a defendant in a products liability case can introduce evidence of the plaintiff’s behavior. In the case of Reott v. Asia Trend et. al., the court explained that there are only three limited circumstances when a defendant is permitted to introduce evidence of a plaintiff’s behavior in a strict liability products liability case. These are voluntary assumption of risk, misuse of the product and highly reckless behavior. This case involves a plaintiff, Duane Reott, who was injured while attempting to use a tree stand manufactured by the defendants. The plaintiff failed to use the device as prescribed by the instruction manual. However, the device also did not work properly. The issue at trial focused mainly on whether the wrongful use of the tree stand by the plaintiff counted as highly reckless behavior. The court was confronted with the issue of whether the defendants had met their burdens of proof. The court confirmed that highly reckless conduct is an affirmative defense that must be proven by the defendant by a preponderance of the evidence. In order to prove reckless conduct, the defendant must show that the plaintiff (1) knew of facts which created a significant risk of physical harm or that plaintiff “deliberately proceed to act, or failed to act, in conscious disregard of that risk,” and (2) that the plaintiff’s conduct was the sole or superseding cause of the injury. In this appeal the court ruled that the defense had not proven that Reott’s injury was the sole or superseding cause of his injury, thus he was entitled to a directed verdict on the issue. Thanks to Remy Lapidus for her contribution to this post. http://www.aopc.org/OpPosting/Superior/out/a25020_10.pdf Previous Next Contact

News What Happens When The Attorney Gets the Entire Settlement? WCM's Pro Bono Brief Hopes to Help Answer the Question. February 4, 2016 < Back Share to: Methods of attorney compensation can vary in different areas of the legal practice. One unique practice area that stands out for attorney compensation is the class action field. Class actions play a unique role in the judicial system, and are often the only way by which plaintiffs can be compensated for small harms that are widely distributed, from products liability to securities litigation. However, part of any class action settlement involves a bargaining process between plaintiffs’ and defendant’s counsel over how much the plaintiffs’ attorneys’ will receive. In this bargaining process, the financial incentive of the plaintiffs’ attorney is to no longer maximize the recovery of plaintiffs, but rather maximize his own recovery. Thus, this juncture is a moment of peril for the rights of class members, as the financial interests of the class no longer align with their attorney, which is why class action settlements require court approval. Recently, Wade Clark Mulcahy worked with the New Jersey Civil Justice Institute to file a brief in with the United States Supreme Court in support of a petition arguing that the Court should take up the issue of attorneys’ fees in class action cases to lay out clearer standards for scrutinizing these fee awards. The particular case that WCM asked the Court to consider involved a Florida case where plaintiffs sued Duracell batteries for deceptively marketing certain batteries, and plaintiffs’ counsel received over 94% of the total cash recovery provided for in the settlement. In its pro bono brief, WCM argued that more scrutiny over these settlements is necessary to prevent these types of awards that disproportionately benefit attorneys over their clients and the class. The petition was recently featured by SCOTUSblog as a “petition we’re watching.” The case itself is Frank v. Poertner, Docket No. 15-765, and is on Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit.     Previous Next Contact