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News Bare Legal Conclusions in a Complaint Not Sufficient to Survive Motion to Dismiss June 14, 2024 < Back Share to: The Second Department recently issued an interesting opinion on the application of the agency theory in a unique livery cab case. In Bailey v. City of New York , the plaintiff, who is blind, was injured when he tripped and fell after a cab let him out on the sidewalk. Plaintiff was using an accessible ride program arranged through the New York City Transit Authority (“NYCTA”) and a smartphone app called Curb Mobility. The driver was an employee and/or agent of Curb and the NYCTA. Plaintiff sued the driver, NYCTA and Curb alleging that the driver breached his duty by not ensuring the plaintiff was let out of the cab in a safe place. Curb and NYCTA were sued under a theory of agency for the negligent hiring, training, and retention of the driver. The trial court denied NYCTA and Curb’s motion to dismiss pursuant to CPLR 3211(a)(7). On appeal, the Second Department examined whether NYCTA and Curb “should have known of the employee's propensity for the conduct which caused the injury." The record did not indicate whether there was any training to employees on how to assist blind customers, nor did the complaint allege that Curb or NYCTA knew or should have known of the driver's propensity for the conduct which caused the injury or contain any factual allegations to support such an inference. The Court found that while there was an agency relationship between NYCTA and Curb and the driver, bare legal conclusions without any factual allegations was insufficient to sustain the negligent hiring claims against NYCTA and Curb based on a theory of respondeat superior, so the Court should granted have granted that aspect of the motion. The Bailey decision reiterates the requirement in New York that plaintiffs must provide a certain factual basis for legal allegations in a Complaint. Defense counsel should closely examine the initial pleading and consider moving to dismiss where appropriate. Bailey v. City of New York .pdf Download PDF • 1.48MB Previous Next Contact

News Creative Pleading In PA Requires A Duty To Defend September 30, 2022 < Back Share to: In Siehl v. City of Johnstown, et al., the plaintiff was convicted of murder and was incarcerated for twenty-five years. The plaintiff alleged that, during his period of incarceration, the defendant city and county withheld exculpatory evidence and produced false disclosure statements. After multiple hearings, the Court determined that the defendant officers were untruthful and hid exculpatory evidence. The plaintiff was thereafter free. The plaintiff therefore sought damages for wrongful imprisonment, loss of freedom, economic loss, and critically, exposure to physically harmful prison conditions (e.g. a bodily injury). The defendant city and county thereafter added their insurance carrier to the action with a third-party complaint. The third-party defendant insurer issued an insurance policy to Cambria County, Pennsylvania. The policy in question included general liability coverage and law enforcement liability coverage that extended to cover damages because of “injury, sickness, disease, disability, shock, mental anguish, mental injury and humiliation” as well as false imprisonment, malicious prosecution, and deprivation of constitutional rights. The Eastern District began its analysis by citing the foundational pillars of insurance coverage law in Pennsylvania: the insurer's duty to defend is broader than the duty to indemnify and the duty to defend arises whenever an underlying complaint may potentially come within the insurance coverage. The insurer argued that it owed no duty to defend the claims that were derivative of the initial malicious prosecution. The court disagreed. Concluding that the allegations in the lawsuit would, if true, be covered by the policy, the Eastern District concluded that “under the legally appropriate interpretation/evaluation of the applicable language at issue, [the insurer] owe[d] a duty to defend” partially because of the allegations in the complaint concerning a bodily injury caused by an occurrence. Thanks to Jason Laicha for his contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News College Security Program Creates Duty To Implement That Program Properly (PA) February 9, 2023 < Back Share to: In Doe v. Moravian College, 2023 U.S. Dist. Lexis 4027, 2023 WL 144436 (E.D. Pa. Jan. 10, 2023), the Court acknowledged that landlords can be found liable for the criminal conduct of other parties when the landlord establishes a program of security. In Doe, Plaintiff asserted a claim of negligence against her college alleging that the school failed to provide adequate security after she was allegedly sexually assaulted in a dorm. Generally, a landlord owes no duty to protect its tenants from the criminal conduct of other parties. However, the Court found that an exception to Pennsylvania’s standard negligence law applied when a landlord establishes a program of security, the tenants reasonably rely upon it, and the landlord negligent carries out the program. In Doe v. Moravian College, the court found that there is evidence that the college had implemented a security program in the dormitories by requiring school identification cards to enter the dormitories, they used residential advisors in their dormitories, and that security workers were employed by the school. The school, therefore, owed a duty to the Plaintiff as a landlord. The College argued that no duty was owed because courts have stopped imposing a duty of loco parentis upon colleges and universities. However, the Court differentiated the case because the tortious act took place in a campus dormitory. Ultimately, the Plaintiff's case failed when she had to show that the College breached a duty to the Plaintiff by showing that the operation of the security program was negligent. Here, the Court found that the Plaintiff failed to provide evidence of the breach through a negligent security program. Thanks to Jean Scanlan for her contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Exclusion for Prior Dishonest Acts Can’t Scrap Coverage for Stolen Metal (PA) September 10, 2020 < Back Share to: In National Retail Systems Inc v. Markel Insurance Company, the Eastern District of Pennsylvania examined ambiguous language in an insurance coverage dispute arising out of employee theft. The federal judge held that an exclusion barring coverage for "prior dishonest acts" did not apply to cases of collusion where only one of the conspirators had a known history of dishonesty. Keystone Freight Corp. terminated Brian Allison in 2004 after discovering he had punched in for work but was never seen for the entire day. Keystone then rehired Allison in 2015. Between 2015 and 2016, Allison and co-worker Joseph Allen stole 74 Keystone trailers and miscellaneous metal, conspiring to sell the trailers as scrap and split the proceeds. Keystone sought in coverage for the scrapped trailers under a commercial crime policy with Markel, which provides coverage for any theft of money or property committed by an employee acting alone or in collusion with other people. Markel denied coverage in July 2016, citing the policy's prior-dishonest-act exclusion, which states that the policy does not cover loss caused by an employee who had also committed theft or any other dishonest act before the policy's inception. Markle argued that the exclusion applied Keystone knew Allison had committed a dishonest act given that it had fired Allison in 2004 for stealing company time. Plaintiffs argued that the exclusion did not apply since only Allison and not Allen had a known history for dishonest acts. The court sided with plaintiffs, holding that Markle owed coverage for the scrapped trailers because the policy is ambiguous as applied to the facts of the case. The court reasoned that while the policy plainly contemplates and covers employee thefts committed by more than one person, it did not specifically address circumstances where one of multiple colluding employees triggers the prior-dishonest-act exclusion. In other words, since the exclusion applied to Allison but not Allen, an ambiguity arose since the two men acted together to steal the trailers. Leaning heavily on the well-established principle that ambiguities in policy exclusions are to be construed against the insurer, the court found that this ambiguity cut in favor of coverage. The court noted that if Markel had intended to exclude coverage under such circumstances, it could have said so expressly in the policy. This case represents a win for insureds and a cautionary tale for insurers underscoring the importance of precise drafting, particularly when it comes to policy exclusions. Thanks to Andrew Debter for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News NY Court of Appeals Redefines "Arising Out Of." July 18, 2008 < Back Share to: The phrase "arising out of" has long been broadly construed by New York's courts. This has proven beneficial to many a would be additional insured. Unfortunately, the party may be about to stop. In the case of Worth v. Admiral, et al. (May 1, 2008), the Supreme Court was confronted with a situation in which a general contractor and would-be additional insured sought coverage from the subcontractor and named insured's insurer. The general contractor argued that even though it had conceded that the subcontractor's work was not negligent, the underlying personal injury action "arose" from the subcontractor's work and therefore it was entitled to coverage. The First Department agreed and ordered the subcontractor's carrier to provide coverage. The Court of Appeals, however, disagreed and held that once the general contractor conceded that the subcontractor was not negligent, it could no longer argue that the underlying accident arose out of the "general nature" of the subcontractor's work. http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=7856961 Previous Next Contact

News NJ: Retailer Not Responsible For Sharp Knives January 18, 2013 < Back Share to: The N.J. Appellate Division recently analyzed whether a plaintiff has a claim for negligence when he is harmed by an obvious and dangerous item on display at a retail store. In Khutorsky v. Macy’s, Inc., a husband and wife visited Bloomingdale’s to shop for pots and pans. The husband began to examine kitchen knives placed in a butcher block located in an unlocked, glass-faced cabinet. Other high-end knives would be in a locked display to avoid theft. While pulling a knife from the block, it began to slip from his hand. He swatted at the knife to avoid getting struck in the thigh and as a result cut two tendons and required surgery. Plaintiffs subsequently filed suit claiming that the above-referenced injuries resulted from Bloomingdale’s negligence. Bloomingdale’s moved for summary judgment arguing that it did not breach a duty owed to plaintiff nor was it the proximate cause of plaintiff’s injuries. The Court granted Bloomingdale’s motion finding that the threat of cutting one’s self with a knife is so patently obvious that there was no duty to provide a warning. Plaintiffs appealed in part arguing that there were genuine issues of fact including whether Bloomingdale’s was negligent that should have precluded summary judgment. The Appellate Division affirmed the lower court’s decision. While a retail store has a duty to provide a reasonably safe premises, it has no duty to warn of dangers that are open, obvious and easily understood. Furthermore, no breach could be found in the way Bloomingdale’s displayed the knives. Nothing was hidden or conspicuous in the knife display and the plaintiff had already examined several knives before being injured. The Court found this fact pattern similar to where a plaintiff injures himself after diving into the shallow end of a swimming pool despite knowing the depths of the pool. Summary judgment was therefore appropriate under these circumstances. The death of common sense has been greatly exaggerated. Thanks to Andrew Marra for his contribution to this post. If you have any questions or comments, please email Paul at mailto: pclark@wcmlaw.com     Previous Next Contact

News Personal Injury Action Leads to Wrongful Death Action (NY) June 21, 2019 < Back Share to: In Halloran v Kiri, plaintiff-decedent, who was involved in a motor vehicle accident in 2007 injuring her left shoulder, underwent a number of surgeries to treat the injury. Over the course of the 5 years leading up to her death, plaintiff-decedent received prescriptions for narcotic pain medication from her treating orthopedic surgeon, a pain management specialist, and two other doctors before beginning treatment with defendant Kiri. Her previous treating physicians denied her requests for further prescriptions when decedent exhibited opioid-seeking behavior. Decedent first presented to Dr. Kiri in August 2012 with complaints of chronic pain. Dr. Kiri initially refilled decedent’s high-dose oxycodone prescription, then switched to fentanyl patches, but discontinued the prescription when decedent claimed a skin rash. Ultimately, Dr. Kiri restarted the high-dose oxycodone prescription, and eventually began prescribing decedent Xanax for anxiety as well. Dr. Kiri treated decedent for 14-months until her fatal accidental overdose, never lowering decedent’s prescriptions despite personal notes in decedent’s file stating that medication needed to be lowered. Plaintiff’s family sued asserting causes of action for wrongful death, medical malpractice, negligence, and lack of informed consent. Defendant moved for summary judgment dismissing the complaint on the grounds that decedent’s death was not proximately caused by Dr. Kiri’s acts or omissions. The lower court denied defendant’s motion. The Appellate Division, First Department, found that Kiri failed to meet his burden for summary judgment on causation as decedent's use of illicit drugs was not unforeseeable, and therefore her drug use was not an intervening cause and did not amount to a separate act of negligence that independently caused her death. The Appellate Division further found defendant’s policy argument that all doctors would have to become detectives before prescribing opioids unpersuasive, and opined that Kiri’s failure to obtain medical records, speak with decedent’s orthopedist, and heed signs of opioid abuse during his 14-month treatment of decedent raised an issue on deviation from accepted practice. Finally, the Appellate Division found that defendant’s expert’s opinions on informed consent were conclusory as they did not specify what risks should have been disclosed by Kiri to decedent before prescribing opioids and Xanax. This is a case of first impression in the appellate courts providing a malpractice cause of action for victims of opioid over-prescription which, given the opioid crisis, is likely to be further expanded or defined as new cases make their way to the appellate courts. Thanks to Margaret Adamczak for her contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Jury's Web Research Leads to Mistrial (NY) May 2, 2013 < Back Share to: Speaking with the jury after a trial is always fraught with peril. That issue recently came to light in Olshantesky v. NYCTA, where it was discovered after the trial that the jury consulted an on-line dictionary to help them define the term “substantial.” The trial court found, and the appellate court agreed, that such research constituted juror misconduct, warranting a mistrial. Interestingly, the appellate court allowed the damages award to stand, finding no evidence that the misconduct affected the jury’s determination on damages. However, the parties will be required to retry the liability case. If you would like more information, please write to Mike Bono. Previous Next Contact

News Close Call on Change of Venue, So the "Ruling on the Field" Stands (PA) July 24, 2018 < Back Share to: The Pennsylvania Superior Court affirmed a trial court’s decision to transfer a case involving a motor vehicle accident based on the location of the accident and the address listed in the affidavit of service for the defendants. In Collins v Maragelis, No. 3256 EDA 2017 (Pa. Super. Jul. 23, 2018), Amanda and Wayne Collins alleged that George and Panagiotis Maragelis were negligent when their motor vehicle collided with the Collins vehicle on Interstate 95 near the Commodore Barry Bridge in March of 2015. The defendants were served in Newtown Square, Delaware County, Pennsylvania. The case was originally venued in Philadelphia County, however Maragelis filed preliminary objections to transfer the case to Delaware County. In support of their preliminary objections, Maragelis relied on the fact that the accident occurred near the Commodore Berry Bridge, which is located in Delaware County, and also that the defendants resided in Delaware County; not Philadelphia. Following a hearing on the preliminary objections, the trial court in Philadelphia transferred the case to Delaware County in August 2017. Collins appealed the order transferring the case. In support of their appeal, Collins argued that the court erred in sustaining the preliminary objections because it essentially relied on “the bare allegations of the objecting party,” and did not secure any additional facts or evidence that the venue in Philadelphia was in fact improper. Collins also asserted that the trial court failed to hold Maragelis (the objecting party) to their burden of proving that venue in Philadelphia was improper, as Maragelis did not provide any additional affidavits or evidence beyond the location of the accident and the address listed on the proof of service. While Collins conceded that the court did not err in taking judicial notice that the location of the accident (the Commodore Berry Bridge) was indeed in Delaware County, they argued that the proof of service only indicated that venue was proper in Delaware County; it did not however, establish that venue was improper in Philadelphia County. The Superior Court articulated that the standard of review was whether the trial court’s decision to transfer venue was reasonable in light of the facts presented. The court also explained that, pursuant to Pennsylvania case law, if there was any basis to affirm a trial court’s decision to transfer venue, the decision must stand. Finally, the court concluded that, the trial court’s decision to transfer venue from Philadelphia to Delaware County was reasonable in light of the facts that the accident occurred in Delaware County and the defendants were properly served in Delaware County. Thus, the Superior Court affirmed the lower court’s transfer of venue to Delaware County. While this may seem relatively minor, it is a reminder for defense attorneys in Pennsylvania that it is worthwhile to engage in the initial analysis of whether to file preliminary objections before Answering a plaintiff’s complaint. In this instant case, the removal of a case from the notoriously plaintiff-friendly jurisdiction of Philadelphia, to the markedly more conservative Delaware County could very likely have a real impact in the overall framing and value of the case. And, much like in the NFL, the "ruling on the field" stood, and the Superior Court affirmed the trial court's decision based upon the standard of review. Thanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News PA Superior Court Finds That Employer Is Liable For Contribution Despite Not Being At Fault For Plaintiffs’ Injuries August 26, 2021 < Back Share to: In McLaughlin v. Nahata, et al., the Pennsylvania Superior Court found a hospital could seek indemnity or contribution toward a $17 million verdict rendered against it, from the employer of the doctors found liable for malpractice. Plaintiffs Alyssa McLaughlin and William McLaughlin sued two doctors over injuries Alyssa received while treating at The Washington Hospital (“TWH”). Plaintiffs also named TWH as a defendant. TWH joined The Dialysis Clinic, the doctors’ employer. Although the doctors performed the treatment that allegedly caused the injuries at TWH, the trial court found that The Dialysis Clinic was the doctors’ employer. Eventually, the doctors settled with the plaintiffs and TWH’s claims for contribution from The Dialysis Clinic were severed into a separate trial. The Dialysis Clinic claimed that it could not be held liable because it did not contribute to the injuries. The Superior Court disagreed. The court reasoned that the Pennsylvania Joint TortFeasors Act “does not limit the right of contribution to tortfeasors who have been guilty of negligence. Contribution is available whenever two [or] more persons are jointly or severally liable in tort, irrespective of the theory by which tort liability is imposed.” Although the theory of liability against The Dialysis Clinic was only through vicarious liability, the court reasoned that contribution was still available. Ultimately, the Superior Court remanded the case to the trial court because it found that the amount of liability to be apportioned to The Dialysis Clinic was a jury issue. Thanks to John Lang for his contribution to this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News Convict Not Entitled to MBA Degree September 24, 2010 < Back Share to: At times, the law seems disconnected from common sense or the real world. While it is debatable whether "business ethics" is an oxymoron in the rough and tumble atmosphere of Wall Street, there are some fixed moral guide posts for ethical business conduct. Does some conduct disqualify a student from receiving a business degree? Should a university confer a master of business degree to someone guilty of criminal conduct? How much chutzpah does it take to argue that a university could not use a guilty plea to criminal charges to deny a student his MBA degree? In Rosenthal v. NYU, an accountant conspired with his brother to trade securities based on non public information, a violation of the U.S. securities laws. It seems that this scheme was hatched while plaintiff was a graduate student at the Stern School of Business at NYU, pursuing a Master of Business degree. Ironically, plaintiff taught an ethics course as a teaching assistant, presumably guiding other young minds in discerning the fine line between ethical and unethical conduct. After his graduate course work was completed, plaintiff entered a guilty plea to conspiracy to commit securities fraud. NYU learned of the plea, undertook an investigation and eventually denied plaintiff his degree based on his admittedly criminal conduct. Plaintiff protested and filed a federal court action. In a detailed opinion, the court upheld the denial of plaintiff's degree and sided with the university. Perhaps the plaintiff should have paid closer attention to the material he taught in his professional responsibility course? If you have an questions or comments about this post, please email Paul at pclark@wcmlaw.com http://pdf.wcmlaw.com/pdf/Rosenthal.pdf Previous Next Contact

The legal issues arising out of the operation of schools and not for profit entities are often unique to their missions. We have worked with public and private universities, private, independent and charter schools, and day care centers who need experienced legal counsel who understand the challenges they face. WCM has assisted clients who have faced claims ranging from the failure to supervise a student, routine premises liability exposures, and in more sensitive matters involving instances of sexual harassment, abuse or assault. Whether the matter implicates the Clery Act reporting requirements, New Jersey’s Charitable Immunity Act, or otherwise, we stand ready to guide you through these complex problems. Education and Not for Profit Law The legal issues arising out of the operation of schools and not for profit entities are often unique to their missions. We have worked with public and private universities, private, independent and charter schools, and day care centers who need experienced legal counsel who understand the challenges they face. WCM has assisted clients who have faced claims ranging from the failure to supervise a student, routine premises liability exposures, and in more sensitive matters involving instances of sexual harassment, abuse or assault. Whether the matter implicates the Clery Act reporting requirements, New Jersey’s Charitable Immunity Act, or otherwise, we stand ready to guide you through these complex problems. Practice Lead Nicole Y. Brown Managing Partner +1 212 267 1900 nbrown@wcmlaw.com Download Download