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News NY App. Div. Finds Pre-Teen Plaintiff Created Risk With Unintended Use Of Stretching Bar January 7, 2010 < Back Share to: In Osorio v. Thomas Balsley Assoc., the 12-year-old plaintiff was injured when he climbed onto a stretching bar in the adult fitness area of a municipally-owned park while playing a game of tag and fell over an adjacent perimeter fence dropping approximately nine feet to the sidewalk outside the park. The defendant moved for summary judgment arguing assumption of risk. In dismissing the matter, the appellate court focused on the plaintiff’s creation of the dangerous risk, as opposed to whether or not he assumed the risk in participating in the game of tag. Specifically, the court held that the plaintiff was the sole proximate cause of his injuries because it was his voluntary decision to use the stretching bar for climbing, as opposed to its intended use. Moreover, without any evidence of prior incidents involving the stretching bar’s improper use, the court held that the danger was not foreseeable to the defendant. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_00002.htm Previous Next Contact

News Pennsylvania Courts Further Divided on Restatement. March 15, 2013 < Back Share to: As previously reported, a growing rift has emerged between Pennsylvania’s state and federal courts regarding the applicability of the Restatement (Third) of Torts to product liability actions. True to form, a recent decision from the Western District of Pennsylvania further complicated matters when Judge Arthur J. Schwab declined to follow the Third Circuit’s ruling in Covell v. Bell Sports, Inc. and instead adopted the State Supreme Court’s adherence to the Second Restatement. In Gilmore v. Ford Motor Company, Judge Schwab previously ruled that the Restatement (Second) of Torts governed plaintiff’s claim of strict liability against Ford where the decedents were ejected from their 2000 Ranger pick-up.Ford took exception and moved for reconsideration, arguing that the Third Circuit’s decisions in Covell and Sikkelee v. Precision Airmotive Corp. compelled the court to apply the Restatement (Third) of Torts. Despite Ford’s lofty citations, Judge Schwab remained unconvinced and held that because the Third Circuit’s ruling in Sikkelee was non-precedential, it was free to stand by the position that recent state decisions contradict the federal courts’ predisposition to the Third Restatement. Specifically, Judge Schwab implied that the relevant Third Circuit opinions were obsolete in light of two state Supreme Court decisions issued after Covell and Sikkeleewhere the court continued to apply the Second Restatement. As a result, Judge Schwab concluded that there was no change in Pennsylvania’s controlling law and endorsed the Second Restatement’s application by federal courts sitting in diversity. Although Judge Schwab’s district-level opinion is non-binding, it serves as a succinct, yet persuasive analysis of the tension between state and federal courts regarding the Restatement’s future in Pennsylvania. The opinion’s latent advocacy for comity between the courts should catalyze further consideration of the issue and, at a minimum, indicates that the debate is all but over. Special thanks to Adam Gomez for his contributions to this post. For more information, please contact Paul Clark at pclark@wcmlaw.com . Previous Next Contact

News Not So Fast: The Importance Of Checking Your Evidence (NY) October 6, 2022 < Back Share to: There is nothing worse for a litigator than having evidence that you think will guarantee success for your client …only to discover that it isn’t actually helpful. In the recent case of Cheese v. Ferguson, the defendant faced this avoidable problem. In that case, plaintiff and defendant were involved in a car accident on the Long Island Expressway. The Defendant moved for summary judgement based on dash cam video that showed that for twelve seconds preceding the accident, the defendant was driving safely in their own lane. This was enough for the Supreme Court to grant the motion and dismiss defendant from the suit. However, the Second Department reversed after taking a closer look at the dash cam footage. The court observed that for at least five seconds before the accident, plaintiff’s vehicle was pointed toward defendant’s lane of traffic and that the defendant was looking to the left before the impact. The court found that such footage contradicts the defendant’s claim that plaintiff’s vehicle cut into his lane “suddenly and without warning” and thus he had no duty to avoid the accident. Accordingly, the defendant failed to eliminate triable issues of fact as to whether the defendant was the proximate cause of the accident, and the court vacated the summary judgement order. Defendants and their attorneys must always be mindful of the positive and negative impact of evidence used in personal injury litigation. The Cheese decision highlights the importance of defense counsel fully reviewing and understanding such evidence, particularly video footage. Thought should be given as to whether to use this evidence where it contains both exculpatory and incriminating images. Thank you to Alexander Rabhan for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News NY City Unable To Escape Labor Law Liability In Crane Collapse May 20, 2013 < Back Share to: In the ongoing In re 91st Street Crane Collapse Litigation, the City recently moved for summary judgment under Labor Law § 240(1), arguing that it was neither the title owner of record for the subject premises, nor controlled the construction project at which the crane was operating when it collapsed. At issue was the City’s complicated deed for the property, in which the City granted the premises to the New York City Educational Construction Fund, subject to the conditions of the disposition agreement entered into between the City and NYCECF and also subject to the provisions of the lease between the same parties. The conveyance was structured in this way to allow the premises to be developed as a new public school and mixed-use residential/commercial space. Labor Law § 240(1) places a duty on owners, contractors and their agents. While the statute is silent on the duties of lessees, case law has construed this statute to apply to lessees who hire contractors and thus have the right to control the work being done. Here, the City argued that it had simply leased the property to 1765 First Associates through the NYCECF and, as such had no control of the property such that it would be subject to liability under the Labor Law. The trial court disagreed and in its discussion noted the court’s duty to search for a nexus or link to the party disclaiming ownership when determining whether a party has divested itself of all traces of control and consequently ownership of a subject property. The court focused on the lease language that indicated the lease would commence once the applicable City agencies had issued the necessary approval of the relevant documents that included the agreement that designated 1765 First Associates as the developer of the property. The court, therefore, held that a question of fact existed as to the nature of and basis for the City agencies’ approval. Despite this intricate web of conveyance, the fact that the City reserved the right to render final approval made it easy for the court to find a contractual connection for the City to continue exercising some control over the property, thereby potentially subjecting it to Labor Law liability. Special thanks to Michael Nunley for his contributions to this post. For more information, please contact Nicole Brown at nbrown@wcmlaw.com . Previous Next Contact

News NJ Shore Town Cleared in Jet Ski Fatality June 30, 2010 < Back Share to: Riding a jet ski is like being strapped to a water-based rocket. The thrill of slicing through the water is exhilarating with the whiff of danger always near. The darker side of these devices is that they can be very dangerous, particularly when placed in the hands of young, inexperienced riders. In response, many municipalities require that operators take a boating safety course that familiarizes them with the proper operation and potential dangers associated with jet skis. So far, so good. But is the local municipality liable for failing to confirm that an operator has taken the required course when the jet ski is launched from a city owned ramp? No so according to the New Jersey Appellate Division. In Lynch v. Ocean City, a sixteen year was given a jet ski that her uncle had borrowed from a friend. It was uncontested that neither the uncle nor his niece were experienced in the operation of jet skis or had taken the required boat safety course. Tragically, the niece died after crashing the jet ski into a dock, sustaining fatal head injuries. Relying on the immunities provided by the New Jersey Tort Claims Act, the court held that the Ocean City ramp attendant did not have a duty to check to see if the teenaged operator had taken the required course before letting her use the City’s boat ramp. More specifically, the City did not have a legal obligation to enforce the training course ordinance and could not be liable for allegedly failing to properly supervise the boat ramp on the day in question. If you have any questions or comments about this post, please contact Paul at pclark@wcmlaw.com . http://www.judiciary.state.nj.us/opinions/a1404-09.pdf Previous Next Contact

News Insurer Who Ignored Arbitration Pleading Must Abide By Award Entered (NJ) September 6, 2013 < Back Share to: Insurers who are signatories to arbitration forums such as Arbitration Forum, Inc. to resolve disputes amongst other signatories should be aware that New Jersey courts will enforce such agreements. In a recent case, Excelsior Insurance Co. v. One Beacon Insurance Co., the Appellate Division noted the Legislature's encouragement of this "speedy, inexpensive, expeditious and perhaps less formal manner" to resolve such disputes. The dispute involved two insurers who wrote succcessive policies to the same insured housing developer. When claims were brought for water infiltration against the developer, Excelsior, who had first insured the risk, denied coverage claiming that the water infiltration had not manifested during its policy term. One Beacon defended the insured under a reservation of rights and, then, pursued Excelsior in the arbitration forum after judgment had been entered against the insured. Excelsior failed to timely answer One Beacon's pleading in arbitration resulting in an award against it. Excelsior unsuccessfully turned to the New Jersey Superior Court to set aside the arbitration award. Excelsior contended that it contested coverage owed to its insured- taking the controversy out of the scope for such arbitration. In fact, the arbitration agreement provides that a company shall not be forced to submit to arbitration where coverage is contested. However, Excelsior failed to follow the special rules for arbitration it agreed to follow when it failed to affirmatively plead its defense. Additionally, had it sought to raise the coverage issue, the nature of the denial did not fall within the guidelines for such an affirmative defense. Such a coverage denial is applied only where the claim is against an individual who is not covered or with respect to a policy that was not in effect at the time of the incident. The Appellate Division did not consider Excelsior's denial based upon a "manifestation trigger" as meeting this guideline term. Thus, the court was not moved by Excelsior's arguments and found no abuse in discretion by the arbitration forum or the lower court judge. The award was upheld. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News WCM to Co-Host October 12 Product Recall Webinar September 16, 2020 < Back Share to: Total Recall: An In-Depth Look At Issues That Arise With Product Recall Policies Bill Johnstone and Matthew Hagan of Johnstone Partners, https://johnstone-partners.com/, and Bob Cosgrove and Colleen Hayes of Wade Clark Mulcahy, LLP, https://www.wcmlaw.com/, are pleased to invite you to a product recall webinar on Monday, October 12, 2020 at 11 a.m. EST. This webinar will take an in-depth look and discuss, from both a legal and expert perspective, a variety of topical and complex issues that tend to arise in connection with product recall policies. Specifically, the webinar will address: Fashion Before Function in Wordings We will first venture into a comparative analysis of the Customer Loss Of Profit Endorsement and the Recall Liability Endorsement. We will delve into a discussion regarding the distinction of these two separate endorsements, as well as a discussion regarding their potential coverage for commonly claimed customer lost profits. Life in the Grey Area Second, we will address the ever-present question of what constitutes “property damage” under a product recall policy, especially if no harmful trigger language is included. We will also discuss the interplay between “property damage” coverage under a product recall policy and a commercial general liability policy -- given that CGL policies typically broadly define “property damage”. Loose Lips Sinks Ships Next, we will address how an insured advertises its product could potentially impact coverage when a claim is made under a product recall policy. Gordon Gekko’s Quality Assurance Programme Finally, no discussion in 2020 would be complete without some discussion on how COVID may potentially impact coverage. In this webinar, we will address the coverage implications if an insured’s quality control processes are impacted by the realities of COVID and no longer comport with underwriting’s understanding of these processes, at the time the policy was placed. If you have interest in attending this webinar, you can register at: https://zoom.us/meeting/register/tJMsfuCoqjsqGdbBEDfjy0LSwen2tSexs26W. You can also contact Bob at rcosgrove@wcmlaw.com for more information. The webinar is approved for CLE credits in NY and CE credits in North Carolina with Texas and California CE credit approval pending. Previous Next Contact

News New Jersey Says No Coverage for Covid Shutdowns…Again < Back Share to: The New Jersey Superior Court Appellate Division recently affirmed a lower court order finding that a familiar favorite, Wawa Inc. was not owed coverage for its loss of business due to COVID-19 shut down orders because the convenience store could not show it suffered a “direct physical loss or damage” to its property. WAWA, INC., Plaintiff-Appellant, v. STARR SURPLUS LINES INSURANCE COMPANY et al., Defendants-Respondents., No. A-3820-21, 2024 WL 64216, at 7 (N.J. Super. Ct. App. Div. Jan. 5, 2024). In its original complaint, Wawa sought a declaration that the defendants should pay the lost business income and extra expenses for losses suffered due to the global COVID-19 pandemic and related emergency shut down orders. Id at 1. Specifically, Wawa claimed it suffered a substantial loss of business when the emergency orders were in effect because its stores were rendered “nonfunctional” and “unusable” for the intended purpose, to serve on the go food. Id. at 5. Wawa argued it suffered a direct physical loss of damages to its properties, triggering coverage under the Real and Personal Property, Business Interruption, Extra Expense, Expenses to Reduce Loss, and Contingent Business Interruption for Attraction Properties provisions of its insurance policies. Id. at 1. Wawa also claimed that the Contamination Exclusion and Mold, Mildew, and Fungus Clause/Microorganism Exclusion do not apply and are violative of New Jersey Public Policy. Id. Similar to the court’s reasoning in TORY BURCH, LLC, Plaintiff-Appellant, v ZURICH AMERICAN INSURANCE COMPANY, Defendant-Respondent. , A-1566-21, 2023 WL 8450915 [NJ Super Ct App Div Dec. 6, 2023] which we previously commented on, the New Jersey appellate panel found that coverage depended on a “detrimental alteration” or “damage or harm to the physical condition of a thing,” as established in Mac Property Group LLC v. Selective Fire & Casualty Insurance Co. , 278 A.3d 272 (N.J. Super. Ct. App. Div. 2022). Id. at 7. The court reasoned that because Wawa failed to allege facts establishing that it lost its “physical capacity to operate” or that its properties necessitated “any repairs, rebuilding, or replacement due to damage,” it did not suffer a “direct physical loss” and therefore coverage was not owed under its insurance policies. Id. Furthermore, the court found that the Microorganism Exclusion was not ambiguous, and bar’s Wawa’s claims because COVID-19 is clearly a microorganism which possess a potential threat to human health. Id at 10. The New Jersey Superior Court Appellate Division has clearly set a precedent that losses due to COVID-19 emergency shut down orders are not “direct physical losses” under most insurance policies, and such losses are otherwise excluded under common Microorganism Exclusions. WAWA INC. v. STARR SURPLUS LINES INSURANCE COMPANY CONTINENTAL CASUALTY COMPANY .pdf Download PDF • 207KB Previous Next Contact

News First Department Finds Nine-Year-Old Cannot Assume Risk May 25, 2011 < Back Share to: In Smith v. City of New York, the First Department reversed the trial court’s granting of summary judgment in the case of a nine-year old boy whom broke his arm after falling from monkey bars during a City-run summer camp. Depositions revealed that campers were not allowed on the monkey bars, but the boy told his counselor, who was supervising a nearby basketball game, that he was going to play on the monkey bars. At his deposition, the boy gave contradicting testimony regarding his awareness of the dangers of playing on monkey bars, stating at one point that he knew of the dangers due to a previous monkey bar accident, and stating at another point that he did not think he could get hurt. Because of the contradictory testimony, the Appellate Division, First Department found that the boy did not fully appreciate the risks of his activity, and as such, could not have assumed the risk that his counselor would not supervise him. Thanks to Alex Niederman for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04301.htm Previous Next Contact

News Translation Dispute and Hearsay Testimony Precludes a Finding of a Question of Fact in Labor Law Case Resulting in Summary Judgment for Plaintiff (NY) January 3, 2019 < Back Share to: In Nava-Juarez v Mosholu Fieldston Realty, LLC, the Appellate Division reversed a Supreme Court decision and granted partial summary judgment to the plaintiff in a Labor Law case, and addressed the issue of hearsay testimony in opposition and translation disputes. The plaintiff claimed he was injured when the ladder he was working on shifted suddenly. In support of his summary judgment motion, the plaintiff provided an affidavit of a coworker who witnessed the accident and averred that plaintiff was painting the exterior facade of defendant's tavern when his ladder shifted, causing plaintiff to fall from his position three-quarters of the way up the ladder. In opposition, the defendants argued that a workers compensation form contained statements from the plaintiff with a different version of how he was injured. The plaintiff’s workers compensation form stated the accident happened “while walking I fell down stairs.” The Supreme Court Bronx County denied the plaintiff’s motion for partial summary judgment under Labor Law § 240(1). On appeal, the Appellate Division reversed this ruling. In its opinion, the Appellate Division held that the defendants failed to raise a triable issue of fact because hearsay, standing alone, is insufficient to defeat summary judgment. Further, the Court noted that the workers compensation form was prepared by plaintiff's worker's compensation attorney with the aid of a translator. Plaintiff testified that he told the translator "Mientras estaba trabajando me cai de una escalera," and asserts that the statement should have been translated as "While working I fell off a ladder." The decision notes that the Spanish word "escalera" may be translated as either "stairs" or "ladder" and in this case, there were no "stairs" to speak of as the premises is a one-story building and did not have an exterior staircase. The Appellate Division ruled that the plaintiff was incapable of discovering the error in the translation of the description of his accident because he could not read English and correct the statement. The summary judgment denial was reversed because the defendants were obligated to show that plaintiff was the source of the information recorded in the workers compensation form indicating that he fell from "stairs," and that the translation was provided by a competent, objective interpreter whose translation was accurate, a fact generally established by calling the translator to the stand at trial. Special thanks to George Parpas for his contribution to this post. Previous Next Contact

Wade Clark Mulcahy opened its doors in 1994 guided by a simple principle: Results Speak for Themselves. The superior and cost-effective results achieved for our insurance and corporate clients have spoken. WCM now has four offices across three states, including in New York City, New Jersey, Pennsylvania and Long Island, and serves its clients in matters across the country. ​ WCM is a firm of trial lawyers who partner About Us Wade Clark Mulcahy opened its doors in 1994 guided by a simple principle: Results Speak for Themselves. The superior and cost-effective results achieved for our insurance and corporate clients have spoken. WCM now has seven offices across six states, including in New York, New Jersey, Pennsylvania, Florida, Louisiana, and Texas and serves its clients in matters across the country. WCM is a firm of trial lawyers who partner with our clients to devise effective strategies to manage risk and to bring closure to complex matters as quickly as possible. And if the matter warrants, we stand ready to fight the end game – whether trial by jury or argument to an appellate bench. WCM is committed to maintaining our reputation for excellence and to letting our results speak for themselves. So, if you need help sorting out a legal mess, count on us. WCM solves defense and coverage issues cleanly, quickly and efficiently. About Us Best Practices Partner Participation A partner reviews all substantive correspondence, letters and reports to our clients, and reviews every dispositive motion before it is served and filed. Prompt Communication We respond to our client’s telephone calls or e-mails within 24 hours, if not sooner. Clients are immediately advised of arbitration dates, mediation dates and trial dates. Clients should never have to ask twice for anything. Top quality service to our clients is our shared vision. Result Driven Strategies We are not file processors or paper pushers. Our focus is on the end result and we execute a strategy designed to achieve our client’s goal. Every call, every letter, every analysis of every document in the file, and every discussion with the other side is undertaken as part of our mutual strategy. Attorney Accountability Files are not shuffled from associate to ass ociate. Whenever possible, the assigned attorney appears at the deposition or substantive court conference. When that cannot happen, our attorneys are still prepared to be the “answer person.” Best Practices

Professionals need to be confident that the attorneys retained to defend them know more than law; they must also know the nature of the business of the professional in order to mount a successful defense to malpractice or errors and omissions claims. WCM has that edge. Drawing on our background in property, casualty and insurance litigation, WCM attorneys have firsthand experience with the risks faced by professionals such as architects, accountants, attorneys, directors and officers, engineers, financial service professionals and insurance brokers and agents. WCM takes great pride in the fact that our practice in this area has grown from referrals within the professional network, many of whom have the choice of counsel in their professional insurance policy. And the successful outcomes that WCM attorneys have achieved fully justifies that choice. Professional Liability Professionals need to be confident that the attorneys retained to defend them know more than law; they must also know the nature of the business of the professional in order to mount a successful defense to malpractice or errors and omissions claims. WCM has that edge. Drawing on our background in property, casualty and insurance litigation, WCM attorneys have firsthand experience with the risks faced by professionals such as architects, accountants, attorneys, directors and officers, engineers, financial service professionals and insurance brokers and agents. WCM takes great pride in the fact that our practice in this area has grown from referrals within the professional network, many of whom have the choice of counsel in their professional insurance policy. And the successful outcomes that WCM attorneys have achieved fully justifies that choice. Practice Lead Michael A. Bono Executive Partner +1 212 267 1900 mbono@wcmlaw.com Download Download