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News Balancing the Scales: The Role of Res Ipsa Loquitur in Pennsylvania Negligence Cases September 20, 2024 < Back Share to: Res Ipsa Loquitur is defined in Pennsylvania as a discrete category of circumstantial evidence that may suffice to establish negligence where more specific evidence of the events surrounding the injury eludes even diligent investigation. Essentially, the doctrine permits a jury to exercise common sense and conclude that the alleged accident could not occur absent negligence. Pennsylvania has historically taken this a step further and allowed the doctrine to be applied to cases involving complex facts and theories, including in medical malpractice cases. In Lageman by and through Lageman v. Zepp , the Pennsylvania Supreme Court analyzed the doctrine in a medical malpractice action and clarified the scope of when the doctrine can be given as a jury instruction. Lageman by & through Lageman v. Zepp , 266 A.3d 572 (Pa. 2021). In Lageman , the trial court originally returned a defense verdict and did not permit Lageman to instruct the jury on finding negligence under Res Ipsa Loquitur since Lageman also presented direct evidence of Zepp’s negligence. Lageman argued that “accepting Zepp's version of how he performed the procedure... arterial cannulation[] would not ordinarily occur in the absence of negligence”; and Pepple's further testimony that no other plausible causes were present, Lageman contended that she made out a prima facie case under Section 328D and was entitled to the instruction. The trial court disagreed and only instructed the jury on negligence since Lageman introduced direct evidence in support of her malpractice claim. Lageman by & through Lageman v. Zepp , 266 A.3d 572, 586 (Pa. 2021). Following the defense verdict, Lageman appealed to the Pennsylvania Superior Court, and the verdict was reversed. The Superior Court found that a plaintiff has no obligation to choose one theory of liability to the exclusion of the other. If the evidence satisfies the bare minimum requirements to support a jury instruction, the instruction should be given. Therefore, presentation of Res Ipsa Loquitur theory to support a medical malpractice claim was not precluded when the plaintiff also introduced direct evidence sufficient to support a malpractice claim, so Res Ipsa Loquitur was not the only avenue to a finding of liability; the two approaches to satisfying the plaintiff's evidentiary burden were not mutually exclusive. Zepp appealed the Pennsylvania Superior Court’s finding, but the Pennsylvania Supreme Court affirmed and found that Lageman was entitled to have the jury instructed on both theories of liability. The Pennsylvania Supreme Court affirmed that in these “gray zone” cases, where the plaintiff presents direct evidence of negligence and circumstantial evidence of negligence under the doctrine of Res Ipsa Loquitur, the jury may be instructed on both theories of liability. Lageman by and through Lageman v. Zepp .pdf Download PDF • 502KB Previous Next Anand P. Tayal Anand P. Tayal Associate +1 267 665 0014 apandittayal@wcmlaw.com Contact

News Pennsylvania A Legislature Tags In For Third Round of Fight Against Governor Wolf’s COVID-19 Orders (PA) June 12, 2020 < Back Share to: Pennsylvania businesses, while understanding the unique threat posed by COVID-19, have not been uniformly pleased with Governor Wolf’s various shutdown orders that mandated large swaths of business closures. The Pennsylvania Supreme Court held that Governor Wolf had the authority to implement emergency measures. Businesses attempted to short-circuit the original stay-at-home orders arguing it exceeded the authority of the Governor and was unconstitutional for a litany of reasons. The PA Supreme Court disagreed. Now, the PA legislature passed a resolution terminating the emergency orders of Governor Wolf. The PA legislature is arguing that the Governor, in light of the resolution terminating the emergency orders, has no choice but to rescind all COVID-19 closures. The Governor, unsurprisingly, disagrees. The Governor points to a provision that requires his approval of almost any order, rule, or law passed by the legislature. Litigation has commenced. Future employers, hit with lawsuits arguing that an employee was exposed to COVID-19 in the workplace, could point to the resolution by the legislature, indicating that they believed it was “safe” to open and were merely complying with government wishes and trying to start earning money again. Conversely, a plaintiff could point to Governor Wolf’s pronouncements, arguing that it was unwise to open and that the executive branch still considered it unsafe. Thus, given this legal wrangling, on both sides, this will only be one wave in the coming COVID-19 litigation. It won’t be the last. Thanks to Matt Care for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Pennsylvania Amendment Snaps Back At Snap Removal January 21, 2022 < Back Share to: On January 18, 2022, the Pennsylvania Supreme Court formally amended the Pennsylvania Rules of Civil Procedure clarifying that original service of process is satisfied per Rule 400(b) by a sheriff or competent adult in cases of state to federal court and permitting pre-service or “snap” removal pursuant to 28 U.S.C. § 1441. This change was initiated when the Pennsylvania legislature heeded the clarion call of the Third Circuit Court of Appeal’s call to action in Judiciary Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147, 154 (3d Cir. 2018), which identified conflicts between §1441, its “forum defendant” exception in Section 1441(b), and the former Rule 400 leading to inconsistencies across the state and a split amongst the circuit courts. Specifically, Section 1441(a) provides that a state action may be removed to a federal court where there is federal subject matter jurisdiction, including where there is complete diversity of citizenship between all plaintiffs and all defendants. Further, Section 1441(b) states the “forum defendant” exception: an action otherwise removable on the basis of diversity jurisdiction “may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which the action is brought.” Section 1441(b) (emphasis added). In conflict, Rule 400(a) provides that the sheriff must serve original process of civil actions within the Commonwealth. While former Rule 400(b) enumerated certain civil actions to allow original service of process by sheriff or competent adult, Rule 400.1 carves out an exception for the service of original process in Philadelphia County. In turn, this tension led to different interpretations per venue, fostered the principle of “snap” removal, and in practice, has led to docket monitoring now available with increases in technology, professional service of process industries, and a race-to-the federal courthouse where prospects may be more favorable. In Encompass, Encompass Insurance Co., the defendant agreed to accept electronic service of process instead of requiring formal service of the complaint, however, when the plaintiff then filed suit against the defendant in the plaintiff’s home state and sent the defendant a copy of the filed complaint and a service acceptance form via email, counsel for defendant refused to accept service and thereafter removed the action to federal court. The Encompass court found that the face of Section 1441(b) does not prevent removal where the in-state defendant has yet to be properly served under the state law at issue, here, Pennsylvania. In noting how the district courts within the state and country were split, the Encompass court decided narrowly and ultimately kicked the issue to the Pennsylvania legislature. See Parker Hannifin Corp. v. Fed. Ins. Co., 23 F.Supp.3d 588, 596 (W.D. Pa. 2014) (concluding that “the forum defendant rule does not apply to this case because plaintiffs failed to properly serve [the in-state defendant] prior to removal of this case to federal court”). In turn, the Pennsylvania Civil Rules Committee proposed an amendment to Rule 400 enumerating circumstances of “snap” removal under Rule 400(b) which has formally been adopted per Order No. 727. In its report, the Committee notes that amended rule is intended to ameliorate “snap” removal and the holding of Encompass, as such polarized outcomes defeat the purpose of the Pennsylvania Rules of Civil Procedure in obtaining speedy determinations to actions. See Pa. R.C.P. 126. This amendment takes effect April 1, 2022. Practically, this change will make it difficult, but not impossible, for in-state defendants to remove a case from state court to federal court under diversity jurisdiction and signals the Pennsylvania court’s broadening interpretation of what it means to avail oneself to the forum state. Thanks to Kendall Hutchings for her contribution to this article. If you have any questions, please contact Matthew Care. Previous Next Contact

News Emergency Doctrine Rescues Taxi Driver (NY) March 18, 2016 < Back Share to: Under the “emergency doctrine”, if a driver is faced with a sudden and unexpected circumstance which leaves little or no time to consider alternative courses of conduct before making a speedy decision, that driver is not negligent if his or her reactions are reasonable and prudent in the emergency. In Kandel v FN Taxi, Inc., the plaintiff was injured when he was pinned between two vehicles after a multi-vehicle accident. The plaintiff and one of the defendants had been involved in an accident after sliding on ice. Their cars were stopped in the right lane of a three-lane highway when a vehicle belonging to a non-party crashed into the median and came to rest in the left lane. A yellow cab, after rounding a curve, saw the other vehicles stopped in the left and right lanes. The driver stepped on his brakes, but a sheet of black ice on the highway caused the cab to slide and hit the plaintiff’s vehicle pinning the plaintiff between his own car and the other vehicle in the right lane. The cab driver and owner successfully moved for summary judgment, arguing that the emergency doctrine precluded plaintiff from pursuing a negligence claim against them. The decision was affirmed on appeal. The Second Department found that the cab driver was faced with an emergency when he observed three crashed vehicles blocking two lanes of traffic. There was no evidence the driver was speeding, nor did he have reason to believe there would be black ice on the road on an otherwise dry day. The court held that under these particular circumstances, the cab driver acted reasonably when he hit the brakes and tried to steer the taxi clear of the other vehicles. Although the reasonableness of a driver’s actions can raise a triable issue of fact to defeat summary judgment, the court found that plaintiff did present any evidence that the cab driver either contributed to or could have avoided hitting plaintiff’s car. Thanks to Sheree Fitzgerald for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Second Department Clarifies Distinction Between Administrative And Legislative Actions (NY) August 18, 2023 < Back Share to: In In the Matter of Lishan Aklog v. Town of Harrison, a four-judge panel at the Second Department ended a town drama predating the Covid-19 Pandemic, and in so doing, clarified the sometimes-nuanced distinction between legislative and administrative actions by a township. See Aklog v. Harrison, N.Y.S.3d (2023). The Respondent, Anthony Robinson, has since 2012 served as the Commissioner of Public Works in the Town of Harrison in Westchester County. At a 2020 Town Board meeting, members expressed concerns about Robinson’s primary residency outside Harrison. Fueled by these concerns, the Board voted not to reappoint Robinson to his position, and instead, to appoint an acting commissioner. Importantly, the Board concretized its goals by adopting two resolutions. But to the Board’s chagrin, the resolutions were never implemented as Counsel for Harrison advised, on bases unexplored by the Court, of legal consequences of summarily removing Robinson from his post. Thus, Robinson has continued serving as Commissioner despite the figurative coup d'état attempt. But the Petitioner refused to accept the status quo, and filed suit in the Supreme Court, Westchester County. Petitioner initiated the action pursuant to CPLR § 78, seeking declaratory relief that would remove Robinson from his post and install the acting commissioner. The Court was persuaded by the argument of Robinson’s Counsel that the Petitioner lacked standing, and Petitioner appealed. New York courts have long been guided by the rule that “citizen taxpayers have standing to ‘challenge important governmental actions’ when the failure to accord standing would ‘erect an impenetrable barrier to any judicial scrutiny of legislative action’” See Matter of Colella v. Bd of Assessors of Nassau Cty., 95 NY2d 401 (Ct. of Appeal 2000). In the instant matter, the Court needed to examine whether town board resolutions constituted administrative or legislative action and deemed them the former. The Court relied on Matter of Clark v. Town Bd. Of Town of Clarkstown and held that Robinson’s appointment was a matter of administrative, rather than legislative, determination. See Clark v. Clarkstown, 28 A.D.3d 553 (2nd Dept. 2006). Much like Clark, which concerned the appointment of a local police chief, Aklog concerned the appointment of a local official. The Petitioner also failed to demonstrate that Robinson’s continuation as Commissioner was a matter “imperiling the public interest,” as required by General Municipal Law § 51. In Aklog, the Second Department did not outline an ironclad or universal principle that town board resolutions are not legislative in nature. But the key trend within the Department is towards such resolutions constituting administrative action. Thanks to Mark Kindschuh for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News NY Holds No Duty For Health Club To Use Defibrillator February 7, 2011 < Back Share to: < ![CDATA[NY Holds No Duty For Health Club To Use Defibrillator]]> Previous Next Contact

News No Flood Insurance... No Flood Coverage (NJ) June 9, 2017 < Back Share to: Risk transfer is only available if the transfer occurs before the risk becomes reality. Unfortunately for many, the recognition that there is a risk only comes after reality. Insurance brokers who deal in that risk transfer transaction are uniquely situated to bridge that gap. But exactly what can or should a broker do to ensure that a client understands the risk and purchases the proper insurance? In Satec, Inc. v. The Hanover Group, the plaintiff property owner appreciated the risk too late, but the court did not buy that its broker or insurer was to blame. Satec, Inc. owned property with a warehouse and business offices in a New Jersey flood zone. It consulted with an independent insurance broker, who obtained a proposal for property coverage from Citizens Insurance, a subsidiary of Hanover Insurance. Along with the proposal, the broker provided a letter with a recommendation that Satec carefully review the limits and, in particular, consider additional coverage. Significantly, the optional coverage included flood and earthquake coverage that was otherwise explicitly excluded from the property coverage in the proposal. Satec accepted the proposal without any additional coverage. Over the next four years, Satec renewed the policy annually. Before each renewal, the broker sent Satec a letter advising of the availability of flood and earthquake insurance, and Satec opted to renew the policy without this coverage. Of course, the inevitable happened when Hurricane Irene struck New Jersey. The property flooded with a resulting $2.3 million in damages. Satec filed a claim with Hanover that was denied as explicitly excluded by the policy. Satec then filed a complaint against Centric, Hanover, and Citizens. Satec alleged, among other things, a breach of contract, negligence, and professional malpractice. Upon the closing of discovery all defendants moved for summary judgment and, after precluding Satec’s expert’s testimony and opinion, the trial court granted the motion as to all defendants. On appeal Satec argued that (1) an insurance broker owes a fiduciary duty to advise the insured and no expert is needed to establish that the defendants breached this duty; (2) Satec’s expert opinion was valid; and (3) Hanover should be vicariously liable for the negligence of the independent broker, Centric. The appellate court acknowledged that an insurance broker does owe a duty to his principal to exercise diligence in obtaining coverage in the area his principal seeks to be protected. However, expert opinion is generally needed to establish a breach of this duty. Satec’s expert, while he was able to articulate a broker’s duty of care, failed to site any authority or industry standards beyond his personal experience; thus, rendering his opinion inadmissible. The court was not persuaded that the plaintiff could sustain the broker malpractice claim on the basis of common knowledge. This doctrine applies where "jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of specialized knowledge of experts." Rather, the court found that the field of insurance brokerage is beyond the ken of the average juror, and, thus, expert testimony is necessary. Satec also argued that the insurer should be vicariously liable for the failings of the broker based upon agency principles. Under this theory, it sought to impute any negligence of the broker in failing to properly assess and advise of its flood insurance needs. Significantly, the broker was an independent of the insurer and not an agent. New Jersey has long recognized that an independent broker’s actions are not imputed to an insurer. Basically, when an independent broker is making recommendations to a client, he is acting on behalf of that client, not the insurance companies. Thanks to Marcus Washington for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Workers’ Compensation Carriers can Subrogate against tortfeasor, even though Plaintiff Couldn't (NJ) December 14, 2018 < Back Share to: On December 14, 2015, David Mercogliano, an NJ Transit employee, was driving a car owned by NJ Transit when he was struck by another motorist. As a result of the accident, Mr. Mercogliano only suffered minor injuries and therefore his injuries did not overcome the verbal threshold. He was barred from suing the other driver. However, he was still able to receive workers’ compensation benefits through NJ Transit’s workers’ compensation carrier. They paid out a total of $33,625 as compensation for his medical bills and indemnity benefits. In an effort to recoup the money that was paid out, the workers’ compensation carrier filed a subrogation action against the driver of the other vehicle. A Superior Court judge granted summary judgment against the workers’ compensation carrier, ruling that the Automobile Insurance Cost Reduction Act barred the subrogation claim. The workers’ compensation carrier appealed this decision and the Appellate Division overturned the lower court’s ruling. Last week, the three-judge panel held that even though Mr. Mercogliano could not recover benefits from his own automobile insurance or sue the other driver for non-economic damages, the workers’ compensation carrier had the right to file a subrogation claim. Their rationale was all about legislative intent. The court said that the Workers’ Compensation Act applies, not the Automobile Insurance Cost Reduction Act. And if the legislature wanted to bar these claims they would have included that language in the AICRA, which was drafted 87 years after the WCA, but they didn’t. What does this ruling mean? Well, if it is determined that a plaintiff’s injuries do not meet the verbal threshold in NJ, that doesn’t mean the insurance carrier is in clear. Yes, the insurance carrier won’t need to pay out non-economic damages to the plaintiff, but if the plaintiff was in the scope of his employment at the time of the accident, the motor vehicle insurance carrier needs to be aware of a potential subrogation claim from his employer’s worker’s compensation carrier. Thanks to Marc Schauer for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Pick a Story and Stick With it, or Face Summary Judgment Dismissal. October 25, 2012 < Back Share to: In Flahive v. Union College, plaintiff allegedly slipped and fell while attending a banquet at defendant’s campus.　 After the fall, plaintiff noticed that his clothes were wet, and that there was soapy water on the floor. Plaintiff attributed the water to improper drainage of dishwashing machines located 30 feet from where he fell. Defendant moved for summary judgment presenting evidence that no one witnessed the wet floor, and that there were no reports of liquids or fluids on the floor.　 In addition, defendant described in detail its clean-up procedures, which included cleaning the floor immediately if any fluid or liquid was noticed. Defendant also demonstrated that it routinely inspected the dishwashing units and held safety meetings to ensure everything was functioning properly. Finally, defendant relied upon plaintiff’s testimony that he walked through the area four to six times before he allegedly fell, without noticing any water or liquid on the floor. In opposition, plaintiff argued that defendant created the condition by negligently mopping the floor.　 However, both the trial and appellate courts found that plaintiff had absolutely no evidence that defendant mopped the floor, and held that the argument was based upon mere speculation.　 As a result, defendant was awarded summary judgment, and the case was dismissed.　 Always remember – hold plaintiffs to their proof, and do not let them speculate! http://decisions.courts.state.ny.us/ad3/Decisions/2012/514322.pdf Thanks to Alison Weintraub for her contribution to this post. Previous Next Contact

News Authenticity and Provenance Questions in the NY Art World. February 27, 2012 < Back Share to: The recent collapse of the Knoedler gallery has been well-documented. Today's NYT had an interesting long form article on the collapse and the resulting litigation arising out of questions as to the provenance and authenticity of various pieces sold by the gallery. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News NJ Deemer Statute Requires Application of Verbal/Tort Threshold January 16, 2009 < Back Share to: Like many states, New Jersey enacted a legislative scheme aimed at reducing automobile insurance by limiting an injured party's ability to sue for injuries sustained in an automobile accident. Unlike New York, a policyholder elects whether to be subject to the "verbal" threshold, which was designed to weed out soft tissue injuries from the legal system in return for a reduced premium. A policyholder pays an increased premium if he selects the unlimited tort option. In contrast, New York's scheme is mandatory and requires a plaintifff to establish "serious injury" as a condition to maintaining a lawsuit for injuries sustained in an auto accident. What happens if an out of state resident has an auto accident in New Jersey and subsequently files suit in the Garden State? Is the plaintiff subject to the verbal threshold even if the other state has no analogous scheme? The simple answer is "yes" to both questions if the plaintiff is insured by an admitted New Jersey insurer. Pursuant to its deemer statute, New Jersey "deems" any policy issued by an insurer authorized to underwrite insurance in its state to contain the verbal threshold or limited tort option. As a result, a Pennyslvania resident who is injured in New Jersey in an automobile accident must vault the verbal threshold as a condition to recovery where his insurer is admitted to underwrite insurance in New Jersey. http://lawlibrary.rutgers.edu/courts/appellate/a3850-07.opn.html Previous Next Contact

News Court Rejects Jeweler's Fragile Argument Against Brinks February 8, 2012 < Back Share to: Anyone dealing in the world of jewelry, fine art, or specie is all too aware of the limitation of liability clauses that appear in shipping contracts. That issue was front and center in a recent appellate court decision in New York, Maxine v. Brinks. Plaintiff, a jewelry retailer, used Brinks to ship 157 “ornate pieces of handmade jewelry” from plaintiff's New York City facility to a department store in Virginia. The items were contained in a soft-sided rolling suitcase, and the airbill listed a declared value of $2 million. The retail value, according to invoices, was more than $6,000,000, with a wholesale value about half that amount. While in transport, the shipment was damaged, and plaintiff’s claim was over $600,000. In the trial court, Brinks was awarded summary judgment and the complaint was dismissed. The airbill contained a provision limiting Brink’s liability to lost shipments, unless specific items were identified and their values declared – which would have required plaintiff to pay additional charges for the shipment. On appeal, plaintiff claimed that the limitation of liability was ambiguous, because it required identification of a “fragile” item -- a term not defined anywhere in the Brink’s airbill. But in its decision, the appellate court pointed out that plaintiff was unable to overcome the other provision in the airbill that excluded breakage for jewelry. Specifically, the provision excluded “BREAKAGE of statuary, marble, glassware, bric-a-brac,' porcelain, decorative items including jewelry and similar fragile articles…” Plaintiff tried to claim that provision was buried in small print and was also ambiguous because it lumped together a number of items in an unclear manner, and appeared to only apply to breakage of “fragile jewelry” or certain decorative items. But the Court rejected plaintiff’s claims, finding that the list clearly excluded the enumerated items, including jewelry, and that a definition for fragile only needed to be applied if an item was not specifically listed. Thus, the trial court’s decision to dismiss the complaint was upheld. If you would like more information about this case, please write to mbono@wcmlaw.com .     Previous Next Contact