Wade Clark Mulcahy LLP

News Frozen Pizza Quest no Excuse of PA Fall June 22, 2018 < Back Share to: Recently, a Pennsylvania court evaluated a grocery store’s liability for injuries caused by known or obvious conditions. In Walker v. Save-a-Lot. Plaintiff was shopping in a grocery store when she tripped and fell on a pallet displaying cases of water in the middle of the frozen food aisle. Plaintiff walked toward the pallet on her way to the freezer and situated her cart adjacent to the pallet. After grabbing a frozen pizza, plaintiff stepped away from the freezer and tripped over the pallet. Defendant sought summary judgment on the ground that the pallet created a known or obvious condition. Plaintiff claimed she did not see the pallet as she was focused on finding a frozen pizza. Surveillance footage showed that the plaintiff walked by one pallet displaying cases of water before she approached a second pallet displaying the same. The court turned to prior decisions addressing the duty of care owed to invitees and concluded that it is established Pennsylvania law that a person must look where he is going, further explaining that customers are not relieved of this responsibility even if they are distracted by sales displays. The court concluded that the fact that the plaintiff claims she did not see the pallet because she was focused on finding her frozen pizza does not excuse the fact that the pallet was a known or obvious condition that she failed to avoid by the exercise of ordinary care. Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News No Notice of Defect in Escalator Defeats Plaintiff's Claim May 17, 2011 < Back Share to: Plaintiff alleged that she sustained personal injuries when the escalator she was riding suddenly began to shake, causing her to fall to the ground. Defendants, owners and lessees of the premises, argued that they had no actual or constructive notice that anything was wrong with the escalator, and were therefore entitled to summary judgment. The First Department agreed, noting that the plaintiff failed to raise a triable issue of fact as to defendants' notice of any defect. Further, plaintiff testified that she rode this particular escalator often, knew of no complaints regarding its operation, and saw no obvious and apparent problems with the escalator prior to her fall. The opinion was silent as to whether plaintiff had also brought suit against the manufacturer or installer of the allegedly defective escalator, but the Court granted the respective summary judgment motions of the lessees and owners of the premises. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03967.htm Previous Next Contact

News The Importance of a Comprehensive Disclaimer in NY March 9, 2009 < Back Share to: In 2002, Plaintiff Estee Lauder presented environmental claims to One Beacon Insurance Group under an insurance policy running from 1968-1971. Unable to locate sufficient evidence that such a policy ever existed, One Beacon rejected the claims, indicating it was terminating its investigation and closing its file. Apparently, it did not cite any other potential ground for disclaimer. Thereafter, further evidence of the existence of the policy surfaced and One Beacon attempted to assert a late notice defense. But the First Department held One Beacon waived its right to assert such a defense, as One Beacon was aware of the facts supporting that potential defense but failed to cite it in its 2002 letters to plaintiff. While the Court recognized that a late disclaimer will not create coverage where the existence of coverage cannot be established, that did not excuse an insurer's duty to timely assert all known defenses to a claim. The Court also held that a blanket reservation of rights allowing for a future disclaimer was insufficient, and that One Beacon's 2002 letters denying the claim served as disclaimers, despite the fact that the term "disclaimer" was not used. This decision serves as an important reminder that an insurer should always cite all applicable coverage defenses, even in cases where it is seems obvious that no coverage exists. Thanks to Stephanie Chen for her contribution. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01313.htm Previous Next Contact

News Are Experts Needed for Res Ipsa Cases? February 7, 2013 < Back Share to: The New Jersey Appellate Division recently handed down a decision that clarifies when expert testimony is required in res ipsa loquitur cases, and when the doctrine may be applied. In certain cases where the cause of an accident is not entirely clear, this doctrine allows a permissive presumption that a defendant breached a duty of care owed to a plaintiff based upon how an accident occurred, provided certain required factors are present. The jury is then free to accept or reject the presumption. In Mayer v. Once Upon A Rose, Inc., the plaintiff, a caterer, claimed that he had been injured while setting up for an engagement party. The defendant, an employee of a florist who was also setting up a display for the engagement party, was carrying a heavy vase that the florist had used on several previous occasions. The plaintiff and defendant set forth different versions of how the defendant was holding the vase at the time the accident occurred. However, the uncontroverted evidence was that the vase shattered while the defendant was holding it, and that the plaintiff was cut by shards of glass from the broken vase. At trial, the plaintiff did not present an expert on the issue of how the glass vase shattered, arguing res ipsa allowed jurors to presume defendant must have been negligent in some way for the vase to have shattered. The court granted a motion for a directed verdict made by the defendant at the end of the plaintiff’s case, finding the failure to present expert testimony on the issue was fatal to the plaintiff’s case. The trial judge also opined that it was unclear whether res ipsa loquitur applied to these circumstances. On review, the New Jersey Appellate Division reversed the order for a directed verdict and remanded the matter for a new trial. The Appellate Division, citing New Jersey Supreme Court precedent, stated that expert testimony is not necessary in all cases where the res ipsa loquitur doctrine is invoked. In fact, as long as, based upon common knowledge, the balance of the probabilities in the case favors negligence on the part of the defendant, expert testimony is not necessary. In essence, if the average juror is able to deduce how the accident occurred without needing to resort to specialized knowledge, then expert testimony is not required. Additionally, because this case involved a glass vase that was in the exclusive control of the defendant, the Appellate Division held that the doctrine of res ipsa loquitur could apply to these circumstances. The jury would be permitted to infer that the defendant was somehow negligent, causing the vase to shatter. The Mayer decision demonstrates that, much like in other areas of the law, expert testimony is only required in cases invoking the doctrine of res ipsa loquitur when the subject matter falls outside the ken of the average juror. Thanks to Christina Emerson for her contribution to this post. If you would like more information please write to mbono@wcmlaw.com . Previous Next Contact

News GC's Right of Supervision Over Subcontractor Work is Key to Determination (PA) July 27, 2017 < Back Share to: On July 19, 2017, the Superior Court of Pennsylvania affirmed an order denying a motion to remove the entry of nonsuit as to Appellee Patrick Smiley, Jr. (“Smiley”), following a jury trial that resulted in a $501,107.41 verdict against Fairman’s Roof & Trusses, Inc. (“Fairman’s”). Smiley filed the underlying suit against Fairman’s after Fairman’s delivered bent trusses to a construction site where Smiley was the general contractor. These bent trusses were installed by Chris Fisher Construction (“Fisher”) and led to the collapse of a partially constructed pole barn. The collapse left Brian Baird trapped beneath four trusses and seriously injured him. Smiley alleged that Fairman’s breached their contract and warranty by delivering bent trusses. Fairman’s also filed a complaint to join Fisher as an additional defendant. In January 2013, Brian Baird and his wife commenced a separate civil action against Smiley and Fairman’s for products liability, negligent design, premises liability, negligence, and loss of consortium. Smiley also filed a cross-claim against Fisher alleging that Fisher was solely liable for the claims asserted by Appellants or was required to indemnify Smiley pursuant to an alleged indemnification agreement between the parties. The trial court bifurcated the appellants’ claims against Fisher from all claims of liability against Smiley and Fairman’s. In the trial against Smiley and Fairman’s, the trial court granted Smiley’s oral motion for nonsuit. The jury then returned a verdict in Appellants’ favor and against Fairman’s in the amount of $501,107.41. Appellants filed an appeal contending that the entry of nonsuit in favor of Smiley was improper prior to the presentation of evidence by all defendants. The Superior Court disagreed stating that Fairman’s indicated on the record that it was not taking a position on Smiley’s oral motion for nonsuit. Thus, Fairman’s lack of opposition suggested it did not intend to present evidence as to Smiley’s liability as part of its defense. In addition, Appellants had the opportunity to develop a case for liability during their case-in-chief which they failed to do. The court adhered to the general rule in Pennsylvania that a contractor is not liable for injuries resulting from work entrusted to a subcontractor unless the general contractor retained control or right of supervision over the performance of the work. Here, Smiley had hired Fisher based on Fisher’s experience in building pole barns and delegated the task of construction and supplying labor to him. Further, Smiley did not visit the job site and never made an attempt to supervise Fisher’s construction work. Thus, Fisher was in total control of the project and therefore Smiley was not responsible for the actions of Fisher. As a result, the Superior Court found no abuse of discretion or error of law by the trial court in entering nonsuit in Smiley’s favor. Thanks to Garrett Gittler for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Court Curtails Use of Incompetent's Settlement (NY) November 22, 2013 < Back Share to: Most parents who serve as court-appointed guardians for their disabled child would know what is in their child’s best interest and would use settlement proceeds to advance those interests. But that does not mean that courts will abdicate their oversight responsibilities. In the Matter of the Application of Geoffrey M. and Jordanna M. involves Sigal M., a girl who suffers from cerebral palsy, quadriparesis, microcephaly, and other developmental issues. Previously, she had been adjudicated incapacitated under Mental Hygiene Law 81.02(b), and had received a structured settlement. The amount in the estate at the time of this decision was approximately $8 million. Sigal’s parents, who are also her co-guardians, sought to use a portion of those funds to pay $33,349 on the bat mitzvah party for her and 237 guests, and $60,000 on a trip to Israel for Sigal, her family, and an aide. The Nassau District Court rejected the request. In reaching its decision, the court considered two approaches. The first, followed by the First and Second Departments, limits withdrawals to necessities and education that cannot otherwise be provided by the parents. The second, articulated by Court of Claims Judge David Weinstein focuses on the best interests of the child. Noting that Article 81 is silent with respect to extraordinary expenses such family holidays and culturally significant milestones, the court focused on the necessity of preserving the estate for the child. For that reason, and because Sigal’s parents were people of means, the court denied the parents’ request to use the money to pay for the bat mitzvah and limited the amount of funds to be used on the vacation. Expenses for the daughter, her aide, and her mother were appropriate, but the court refused to allow expenses for the parents’ hotel room, and expenses related to Sigal’s siblings. Most parents believe they know what is best for their children, but courts have oversight responsibilities. When a guardian spends a disabled person’s money, courts will scrutinize whether the expenditures are for the disabled person or their family as a whole. Based on this decision, even when a disabled person has a major life event on the horizon, their guardians would be well advised to keep estate expenditures as ordinary as possible. Thanks to Mike Gauvin for this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Fore! -- PA Appellate Court Hits One Long and Straight. August 28, 2009 < Back Share to: In a ruling of special interest to WCM Partners, one of whom recently hit another in the side with a golf ball, a PA appellate court has just ruled in favor of a plaintiff who was struck in the face by a golfing partner's tee shot. In the case of Zeidman v. Fischer, the plaintiff was tasked with checking on the location of the group in front of him. While driving back to the tee to advise his partners that they could tee off, defendant Fischer teed off and smashed the ball right into the plaintiff's face. A lawsuit resulted. The trial court ruled for the defendant, but the appellate court reversed. It held that, under the particular facts of this case, it could not rule as a matter of law that the risk was "one inherent or common, frequent and expected” to the game of golf. The case will proceed. This is not good news for the guilty WCM partner as there are still 705 days remaining until the statute of limitations expires. http://www.superior.court.state.pa.us/opin.htm http://www.palawweekly.com/getarticle.aspx?ID=29913 Previous Next Contact

News A Plaintiff's Dream? The Unemployed Get Jury Duty Preference. June 25, 2012 < Back Share to: We tend to steer clear of more political discussions here at Of Interest, but every once in a while an idea comes along that we simply have to point out. According to Fred Clark, a well-known blogger, a solution to both the unemployment problem and the boring nature of jury duty would be to give jury duty preference to the unemployed and combine jury duty with a job fair. As if finding a fair and impartial jury isn't hard enough... For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News MSG and Knicks coach Isiah Thomas whacked in employment case October 3, 2007 < Back Share to: In a public relations nightmare, a federal court jury found Madison Square Garden and James Dolan, its Chairman, liable for sexual harassment, creating a hostile work place and retaliation. The jury apparently credited the account of former MSG executive Anucha Browne Sanders that Knicks coach Isiah Thomas made unwanted sexual advances and directed crude language towards her. The jury awarded $11.6 million dollars including a punitive damages award against Dolan of $3 million dollars. Defiant to the end, Dolan and Thomas vowed to appeal. http://www.cnn.com/2007/US/law/10/02/thomas.suit.ap/index.html#cnnSTCText Previous Next Contact

News NJ Appellate Division Limits Release in Equine Liability Case August 5, 2009 < Back Share to: Although known as the "Garden State," New Jersey is also home to many riding schools, stables and horse farms. It has the Meadowlands Racetrack, Monmouth Park Racetrack and Freehold Raceway just to name a few. Not surprisingly, New Jersey has a statute limiting the liability of the operators of equine activities. Many experienced operators supplement these statutory protections by requiring participants to sign detailed release and waiver forms to protect the operator from any claims for bodily injury. Can a release provide protection beyond those provided by statute? In other words, may a release protect an operator from risks that are specifically beyond the scope of immunities provided by New Jersey's Equine Activities Liability Act? According to Hubner v. Spring Valley Equestrian Center, the answer is "no." In Hubner, plaintiff was injured when her horse tripped over training poles embedded in the the floor of defendant's barn. Two issues confronted the appellate court. First, did the statute protect the equine operator under these circumstances? Second, if not, did the release signed by plaintiff release the defendant from liability? The court decided that the statute did not apply under the facts presented in Hubner. But, more importantly, the court invalidated the release as a violation of public policy. It reasoned that the legislature set forth the circumstances under which an equine operator would be entitled to immunity for claims arising out of equine activities. Thus, the enforcement of the release in a scenario where the operator is not entitled to statutory immunity would undermine "the balance of risks and costs" made by the legislature in the Equine Activities Liability Act. http://www.judiciary.state.nj.us/opinions/a4723-07.pdf Previous Next Contact

News NJ Appellate Division Says No to Frivolous Litigation Award July 29, 2009 < Back Share to: A defendant who prevailed on a claim for fees and costs to defend litigation on the grounds it was frivolous had its award overturned by the Appellate Division in Ferolito v. Park Hill Association, Inc., -- N.J.Super. -- , 2009 WL 2208333 (App.Div. 2009). The claim had been pressed under the frivolous litigation statute, N.J.S.A. 2A:15-59.1. Under this statute, a defendant may be reimbursed when a plaintiff files suit “in bad faith, solely for the purpose of harassment, dely or malicious injury” or if the plaintiff pursues a claim that he knows or should know is without any reasonable basis in law or equity to support it or without a good faith argument that the existing law should be changed. However, if the plaintiff is represented by counsel, the defendant must also prove that the plainitff pursued the claim in bad faith. Additionally, in order to succeed on such a claim, a defendant must comply with R. 1:4-8 by serving a demand that very specifically addresses the reasons why the claim is frivolous to provide the plaintiff opportunity to withdraw the pleading. Although the trial court found that litigation to compel a condominium association to install a satellite dish so that a resident could watch Russian language programming was frivolous, the appellate division disagreed. Finding that the litigation was motivated by a goal of great importance to the plaintiff, the court did not find bad faith. Moreover, the letter that demanded the dismissal of the claim addressed different issues than those for which the court actually dimissed the action. Thus, defendant failed to meet the notice requirement. Previous Next Contact

News Lowering the Bar? (NY) February 6, 2019 < Back Share to: The Appellate Division, Second Department, recently took up the issue of whether a plaintiff involved in a motor vehicle accident may recover damages for lost earnings despite failure to prove a serious injury as defined by Insurance Law § 5102(d). In Gore v. Cardany 2018 NY Slip Op 08632 (2d Dep’t 2018), plaintiff was rear-ended by the defendant while stopped at a red light. Plaintiff then commenced an action to recover damages for personal injuries allegedly sustained to his neck, back and left shoulder. At the time of the accident, plaintiff was in the course of his employment as a bus driver, and sought additional damages for past and future lost earnings in light of his inability to work following the accident. Plaintiff was granted summary judgment on the issue of liability and the case proceeded to trial on the issue of damages. A Westchester County jury found that plaintiff’s injuries did not meet any of the threshold categories under Insurance Law § 5102(d), awarding him nothing at all for pain and suffering. Despite concluding that plaintiff had not sustained a serious injury, however, the jury awarded plaintiff for past lost earnings in the amount of $156,000 and future lost earnings in the amount of $750,000 (over 15 years.) Defendant thereafter moved to set aside this portion of the jury verdict. The trial court agreed, setting aside the verdict as to all damages. On appeal, the Appellate Division reinstated the award for past lost earnings in the sum of $156,000, finding that plaintiff had established these damages with “reasonable certainty,” and as such, plaintiff had satisfied his burden of proof (see Lodato v. Greyhawk N. Am., LLC, 39 AD3d 494, 495; Harris V City Of New York, 2 AD3d 782, 784). Relying on provisions of the Insurance Law, the Court held that “a plaintiff is not required to prove that he or she sustained a serious injury as defined by Insurance Law §5102(d) in order to recover for economic loss exceeding $50,000 incurred as a result of a motor vehicle accident (see Insurance Law § 5104[a].” (Internal citations omitted). Thus, plaintiff’s own testimony that he had been unable to work because of the injuries sustained in the accident, together with submission of his W-2 forms, was sufficient to meet his burden of proof. By contrast, plaintiff failed to provide any competent medical evidence that he would be unable to perform any work in the future, and therefore failed to prove his damages for future lost earnings with the required reasonable certainty. Nevertheless, plaintiff was permitted to recover $156,000 for lost earnings despite failure to prove that he had sustained a serious injury under the Insurance Law. Thanks to Tyler Rossworn for his contribution to this post. Previous Next Contact