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News Unleashing Liability: Understanding Landlord Responsibility for Tenant Dog-Related Injuries December 15, 2023 < Back Share to: Is a landlord liable for injuries caused by a tenant’s dog to another who is on the property of the landlord? Not always, says the Pennsylvania Superior Court. Here’s why. West Penn, a Pennsylvania non-profit corporation owns land used for trap and target shooting. Goodenow v. McMahan , 297 A.3d 731 (Pa. Super. Ct. 2023), (reargument denied (June 26, 2023)). Defendant Ronald McMahan (“McMahan”) is the president and groundskeeper for West Penn and would work at the trap range during trapshooting events. Id . McMahan “always had a dog living with him, and the West Penn board members have always known that McMahan kept dogs on the property, although there was never any discussion about how he should handle them when other groups were utilizing the West Penn site.” Id . McMahan lived on the West Penn property and had a fenced area where he would keep his dog secure. Id . McMahan was unaware of “any incidents or reports to West Penn” that his dog “ever exhibited aggressive tendencies.” Id . McMahan’s dog was known to “interact with other West Penn club members’ dogs, adults, and young children.” Id . The plaintiffs Teresa and Donald Goodenow (“Goodenows”) were attending a trapshooting event at West Penn. They decided to camp on the property and had brought their dog. The Goodenows claimed that McMahan’s dog had attempted to attack their own dog. Id . On July 11, 2015, after the trapshooting event was finished, the Goodenows were socializing outside of their camper with their dog and McMahan was also socializing in a group with his unleashed dog. Id . The Goodenows describe what happened thereafter as McMahan’s dog appearing suddenly at their campsite, grabbing their dog by the head. Id . As one man pulled McMahan’s dog by her collar, T. Goodenow “jumped from her own chair and grabbed [her dog], tripping and falling with the dog in her arms, allegedly resulting in injuries.” Id . Subsequently, D. Goodenow chased McMahan’s dog away. Id . The Goodenows, under the impression that the incident would be relayed to West Penn, did not fill out an accident report. Id . Thereafter, the Goodenows filed claims “asserting negligence for West Penn’s violation of its duty to provide a safe environment and failing to require McMahan to either remove his dog from the property or to keep his dog restrained, as well as a loss of consortium claim….” Id . After discovery, West Penn filed a motion for summary judgment “on the basis that it was an out-of-possession landlord” and that the Goodenows “failed to produce evidence that it had actual notice of [McMahan’s dog’s] alleged vicious propensities.” Id . (internal quotations omitted). In response, the Goodenows argued that because McMahan was the president of West Penn, the knowledge cold be imputed to West Penn and that West Penn had its own independent duties and that the Goodenows were not “merely propounding a vicarious liability/respondate [sic] superior theory against West Penn. Id . The trial court granted West Penn’s motion for summary judgment because the Goodenows had presented no evidence of a dangerous propensity for McMahan’s dog. The Goodenows appealed and argue that there was a genuine issue of material fact whether McMahan’s dog had exhibited dangerous propensities. Id . Ultimately, the Superior Court of Pennsylvania affirmed the trial court’s decision. In doing so, the Superior Court stated that “[g]enerally, in negligence actions arising from the conduct of animals, the animal’s owner is the person responsible for injuries to others caused by his or her pet. … In order to establish a cause of action in negligence against a landlord for injuries caused by his tenant's4 dog, it must be proven that the landlord had “actual knowledge that his tenant harbors a dog with dangerous propensities.” Id (internal quotations and citation omitted). Likewise,the Superior Court relied upon the Supreme Court of Pennsylvania’s description of a dangerous or vicious propensity; “[a] dangerous propensity includes a propensity or tendency of an animal to do any act that might endanger the safety of the person and property of others in a given situation.” Id . (internal citation omitted). In order to establish a cause of action in negligence against a landlord for injuries caused by his tenant’s dog, it must be proven that the landlord had actual knowledge that his tenant harbors a dog with dangerous propensities. Id . Internal quotations omitted). Simply stated, “prior to the ten to fifteen second July 8, 2015 interaction, there had never been any complaints to McMahan or West Penn about [McMahan’s dog’s] behavior, vicious or otherwise, and McMahan had not observed any violent behavior by [his dog] with any dog or person.” Id . What’s the takeaway from this? The lesson for landlords being sued for the acts of a tenant’s dog is that just because a landlord knows that a tenant has a dog does not mean that the landlord has actual knowledge of a dangerous propensity of that dog. Though the Goodenow Court’s decision is non-precedential, it is nonetheless an indicator of how any court might rule given a similar set of circumstances. Goodenow v. McMahan .pdf Download PDF • 179KB Previous Next Ryan Hunsicker Ryan Hunsicker Senior Associate +1 267 239 5526 rhunsicker@wcmlaw.com Contact

News Plaintiff Fouled By Dust On Basketball Court (NY) July 19, 2019 < Back Share to: In Samuels v. Town Sports International LLC, plaintiff brought suit when he slipped and fell on the sideline of a basketball court on what he believed was dust coming from an above HVAC unit. Defendant moved for summary judgment on the theory of no notice and assumption of risk. The lower court granted summary judgment on defendant’s assumption of the risk argument. The lower court held “those who seek to recover for injuries sustained while engaged in sporting events, must overcome the assumption of risk doctrine. Thus, one who engages in a sport or recreational activity consents to those risks which are inherent in the activity.” Plaintiff’s mere participation in a basketball game denotes acceptance of the risk of injury. Moreover, he complained of conditions of which he was aware because he was a fairly frequent player on defendant’s basketball court, and had previously noticed the dust and the slipperiness on the court. Accordingly, the lower court found that the plaintiff assumed the risk associated with playing on a basketball court in such condition. Plaintiff appealed. The Appellate Division, First Department reversed the lower court decision. While the Appellate Division acknowledge the assumption of risk defense, they held the lower court erred in granting defendant summary judgment as defendant failed to make a prima facie case on its affirmative defense of primary assumption of the risk. The doctrine limits the scope of the defendant’s duty of care but it does not exculpate a landowner from liability for ordinary negligence in maintaining its premises. The Appellate Division found that the defendant failed to properly maintain the court and that dust was not an open and obvious condition or inherent in the sport of basketball. The Appellate Division likened dust on the basketball court to a tennis player that trips on a torn net; not a risk inherent in the sport of tennis so as to relieve a premises owner of liability, as a matter of law. Thanks to Paul Vitale for his contribution to this post. Please contact Georgia Coats with any questions. Previous Next Contact

News Insurer Not Estopped From Withdrawing ROR After Defending For Several Years (PA) June 24, 2016 < Back Share to: The Third Circuit Court of Appeals recently dealt with a challenge by an insured to the withdrawal of a Reservation of Rights in Nationwide Ins. Co. v. Shearer. The underlying claims arose from damage caused by the discharge of sewage and other waste by Nationwide’s policyholders, which had drained onto the Shearers’ property and subsequently contaminated their groundwater. The Policyholders were insured by Nationwide, who agreed to provide a defense but stated in Reservations of Rights letters that the claims may be subject to a pollution or biological deterioration exclusion and that it was not waiving its rights to later disclaim coverage. Nationwide subsequently filed a declaratory judgment action and moved for summary judgment, arguing that the claims were excluded from coverage. The policyholders did not challenge the applicability of the exclusionary language and instead claimed that Nationwide should be equitably estopped from withdrawing because it had been defending them for several years and that an untimely withdrawal would be prejudicial. The District Court rejected the policyholders’ arguments and awarded summary judgment in favor of Nationwide. The District Court noted that Nationwide’s reservation of rights letters made clear that its defense “shall not be deemed to be a waiver of or estoppel” of its rights under the policy. The District Court also rejected the policyholders’ claim that Nationwide was required to take steps to withdraw its defense within a certain period of time after issuing reservation of rights letters and that it was instead the burden of the insured to establish “actual prejudice.” Finding no allegations or evidence of prejudice, the Court held that there was no basis to estop Nationwide from asserting its coverage defenses. The policyholders appealed, and the Third Circuit affirmed. Echoing the lower court’s decision, the Third Circuit determined that Nationwide had preserved its coverage defenses in its reservation of rights letters. The appellate court also rejected the Policyholders’ claims that they would be prejudiced as a result of allowing the withdrawal of the defense at such a late stage in the case. Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information. 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

Pablo O. Madriz Counsel New York pmadriz@wcmlaw.com (332) 345-4094 Professional Experience Pablo represents clients in construction and general liability matters in New York State courts. He manages all phases of the litigation process, including pleadings, discovery, mediation, and settlement negotiations. Prior to practicing in New York, Pablo litigated general and products liability cases in California, gaining broad experience across multiple jurisdictions. Pablo earned his J.D. from the Benjamin N. Cardozo School of Law, where he was an active member of the Moot Court Honor Society. Outside the office, he enjoys long runs through the city. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education · JD, Benjamin N. Cardozo School of Law · BA, Santa Clara University Bar Admissions New York California Court Admissions Southern District of New York

News What Is The Deal With These Legal Bills? (NY) March 31, 2022 < Back Share to: Jerry Seinfeld was just involved in a trademark lawsuit stemming from his Netflix series, "Comedians in Cars Getting Coffee," which is pretty funny, and I'm sure Jerry would concede, a fairly transparent excuse for Jerry to hang out with his comic buddies and drive around in fancy cars. I mean, that's basically the title of the show. Not a bad day's work. Seinfeld's lawsuit a former writer and director, whose claims against Seinfeld were dismissed on procedural grounds. The ensuing litigation -- and reason for this post - stems from Seinfeld's attorneys charging him roughly $973,000 in defense fees over the copyright lawsuit. (Clearly, Seinfeld does not have a billing auditor vetting the legal bills.) Last week, a federal judge in the Southern District of New York reduced the fees from $973,000 to $29,000, and referred the defense costs as "staggering" in a 21-page decision. The fact that a busy judge in the SDNY saw fit to spend 21 pages lambasting these attorneys for such exorbitant fees suggests that this decision should act as a deterrent to such practices in the future. The Court provides a thorough recitation of the reasons for the deductions, both in terms of the hourly rates, but more so, the unreasonable time spent. For example, 120 hours researching a motion to dismiss, plus another 130 hours revising that motion after an amended complaint. If only Seinfeld's attorney's name were "Newman" -- then this litigation would make more sense! Please email Brian Gibbons with any questions about this post. Previous Next Contact

Michael A. Bono Executive Partner New York, New Jersey mbono@wcmlaw.com +1 212 267 1900 Professional Experience Michael A. Bono is an Executive Partner at Wade Clark Mulcahy LLP and a leading New York litigator, whose practice centers on high-exposure property, casualty, construction, and specialty-risk disputes. He represents businesses and individuals, including public figures in media, sports, entertainment, and politics. He also defends regional, national, and international insurers, lawyers and other professionals in E&O matters, property owners and construction entities in Labor Law cases with catastrophic injuries, and transport and art-world clients in complex state and federal litigation. With more than twenty-five years of litigation and trial experience, Michael has handled cases at every level of New York’s courts— from trial courts to the New York Court of Appeals, where he successfully argued Forman v. Henkin , the landmark decision setting the statewide standard for social-media discovery in personal-injury litigation. Michael regularly serves as counsel to insurers in first-party property claims, including fraud investigations, coverage litigation, jewelers block and diamond recovery, cargo/bailee, art law cases, subrogation, and other specialty risk matters. Before joining WCM, Michael was a Senior Assistant District Attorney with the Kings County District Attorney’s Office. As an ADA, Michael prosecuted violent felonies and investigated complex narcotic networks and conspiracies. Michael also supervised junior prosecutors and assisted in the training of attorneys and police officers. Michael has also worked for a law firm specializing in the defense of fraudulent insurance claims. Honors and Distinctions At Fordham University, Michael served on the Environmental Law Journal and was a member of the Dean’s List. He was also a magna cum laude graduate of Villanova University. Professional Activities Michael has been elected to membership in the Federation of Defense & Corporate Counsel and the Claims and Litigation Management Alliance. He is also a member of DRI, the Professional Liability Underwriting Society, and the North American Contingency Association. Michael is a frequent lecturer and has conducted seminars before such organizations as the International Underwriting Association of London, the New York State Bar Association, as well as for numerous clients. Publications The Poison Pill? Settling Damage Claims Involving Living Artists (co-author Michael A. Bono): International Fine Art and Specie Conference, Rome, Italy. Sandy’s Impact on Fine Art and Property Insurers IUA Event: London (co-author with Dennis M. Wade). Fine Art and Collectible Losses: Framing the Value Issues (International Underwriting Association, London, England) (co-author with Dennis M. Wade). The Basics of Oral Examination: Understanding the Rules and Law of Depositions Pursuant to the CPLR (New York State Bar Association). The Examination Before Trial: What to Do Before Calling the Court (New York State Bar Association). What Fine Art Insurers Really Need to Know About the Visual Artists Rights Act (VARA) (co-author with Dennis M. Wade). The Anatomy of a Bust Out: The Implications of Bankruptcy and Bankruptcy Fraud for Property, Fine Art and Specie Insurers (International Underwriting Association, London, England) (co-author with Dennis M. Wade). Defending Underwriters, Claim Professionals and Brokers in US Coverage Litigation (International Underwriting Association, London, England) (co-Author with Dennis M. Wade). Getting it Back: Recovering Stolen Property in the United States (International Underwriting Association) (co-author with Dennis M. Wade). News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D. Fordham University School of Law B.S.B.A. Villanova University Bar Admissions New York New Jersey Pennsylvania Court Admissions Eastern District of New York Southern District of New York District of New Jersey

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