Wade Clark Mulcahy LLP

News NY's General Obligations Law § 9-103: A Continued Thorn For Plaintiff's In Personal Injury Cases Against Landowners April 23, 2013 < Back Share to: In Ferland v. GMO Renewable Resources, LLC, the estate of Rene L. Ferland, Jr. filed suit against Fund 6 Domestic, LLC after the decedent died when his snowmobile struck the side of a tractor-trailer that was carrying a load of logs on a private logging road. This road was also used as a snowmobile trail on Fund 6’s property. Fund 6 moved for summary judgment on the grounds that General Obligations Law § 9-103 entitled it to immunity and that the consideration exception to this provision’s grant of immunity did not apply. General Obligations Law § 9-103(1) provides that “an owner…of premises…owes no duty to keep the premises safe for entry or use by others for…snowmobile operation…or to give warning of any hazardous condition…on such premises.” An exception to this exists under G.O.L. § 9-103(2)(b) when consideration is given in exchange for permission to pursue any of the activities enumerated in the section. The plaintiff contended that the consideration exception applied to this case because Fund 6 entered into recreation leases with various non-party fish and game clubs whereby Fund 6 accepted rent in consideration for the clubs to post the leased premises and use them for limited purposes. The key language in the lease agreements was the term “other recreational activities” and the plaintiff argued that this term contemplated snowmobiling, thereby allowing the action to proceed against Fund 6. The Appellate Division disagreed, finding that snowmobile clubs actually maintained the snowmobile trails through volunteer efforts of their members. Further, the court cited to the lease agreement between Fund 6 and the St. Lawrence County Snowmobiling Association that granted the Association permission to use the property for snowmobiling “without charge”. From reviewing the record, the court held that the evidence established that the snowmobile trails were open to the public without charge. Finally, the court gave no credibility to the plaintiff’s attempt to argue that the Association’s use agreement that required it to name Fund 6 as an additional insured on its trail insurance policy, acted as consideration sufficient to trigger the exception. G.O.L. § 9-103 encompasses fourteen different outdoor recreational activities. Whenever a suit is brought against a landowner who has permitted recreational use on its property, it is important to remember G.O.L. § 9-103 as a potential shield to liability – and a continued thorn – in plaintiffs’ personal injury cases against landowners. Special thanks to Michael Nunley for his contributions to this post. For more information, please contact Nicole Brown at nbrown@wcmlaw.com . Previous Next Contact

News School Cannot Control Student's Every Movement (NY) May 15, 2013 < Back Share to: Although a school acts in loco parentis, it - like parents - cannot protect every child against every injury. In Donnelly v. St. Agnes Cathedral School , the parents of an eleven year old student brought an action against his school alleging premises liability and negligent supervision after a fire door closed on his fingertips. The undisputed facts of the case showed that the plaintiff had approached the door walking forward but turned around when he heard someone call him. He extended his hand to hold the door open. Unfortunately, his fingers were pinched within the hinged side of the door and the doorjamb when the door closed. Based upon these facts the Second Department reversed the lower court's denial of summary judgment. Although the plaintiff alleged that the school failed to regularly inspect the door, this was disproven by the school citing a State mandated fire safety inspection one month prior. Additionally, the plaintiff's engineer provided only a conclusory and speculative opinion that the door closed too quickly. Finally, there was no factual basis for a finding that the school had either actual or constructive notice of any defect with the door. The Court also summarily dismissed the negligent supervision claim recognizing that the school could not reasonably be expected to continuously supervise and control all of the student's movements and activities. A school can only be expected to provide supervision to guard against foreseeable injuries. In the instant matter, the plaintiff failed to raise a triable issue of fact as to the foreseeability of the plaintiff's injury. Special thanks to Georgia Stagias for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .       Previous Next Contact

News WCM Awarded Summary Judgment in Hunterdon County, New Jersey Sports Liability Lawsuit. July 8, 2013 < Back Share to: Mountainside, NJ Partner, Denise Fontana Ricci, obtained summary judgment in Deska v. Wildcat Wrestling Club, a personal injury lawsuit in which a spectator at a wrestling match allegedly fell due to water on a gym floor from melted snow. The central issue in the case was whether the New Jersey Charitable Immunity Act precluded the plaintiff ’s claim as the Wildcat Wrestling Club fell under the Act’s protections and all negligence claims were barred. In a creative attempt to escape this immunity, the plaintiff argued that the Club had been grossly negligent in holding the match on a night when it snowed – as gross negligence would overcome the statutory immunity. In opposition, we argued that although the plaintiff asserted that the snowstorm on the night of the match was a nor’easter or blizzard, historical data dispelled this account. We therefore argued that under the facts presented, there simply was no evidence to support a claim of gross negligence based upon a failure to cancel the match for mere snow. The trial court agreed and granted our motion. Previous Next Contact

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

News New Jersey Limits The Duty of Sports Operators and Owners April 22, 2008 < Back Share to: The danger of being struck by an errrant baseball or hockey puck during a game is a well recognized risk of injury to spectators. A field owner customarily satisfies its limited duty of care by providing protection in the most dangerous sections of the field or stadium. What is the duty of care during warmups before a hockey game where numerous pucks are shot and the attention of the fans may not be strictly on the ice? In Sciarrotta v. Global Spectrum, the New Jersey Supreme Court held that the "limited duty rule" applies to warmups as well as games. Thus, an owner/operator satisifies its limited duty by furnishing proper screening and protection in the most dangerous stadium areas. The Supreme Court found no meaningful distinction between injuries that are caused by objects leaving the field of play during practice or warm-ups as opposed to an actual game. http://lawlibrary.rutgers.edu/decisions/supreme/a-28-07.doc.html Previous Next Contact

News Piling Up The Slush Leads To Potential Negligence (NY) January 30, 2020 < Back Share to: In Berganzo v. Bronx Realty Group LLC, the Appellate Division, First Department addressed whether the defendant/property owner created an icy or slushy condition by improperly piling snow in the area where the incident occurred. The case involved a personal injury action where the owners moved for summary judgment arguing that they did not have actual or constructive notice of the icy condition which caused the plaintiff’s alleged fall, and that the fall occurred while a storm was in progress. The plaintiff slipped on ice on the defendant’s property between 5:00 am and 6:00 am. The defendant’s argued that since it was raining at the time of the accident that they were relieved of their duty to keep the premises safe until the storm concluded. The lower court denied the defendant’s summary judgment motion on the basis that issues of fact existed as to whether the property owners negligently caused the condition by piling snow in the area where the incident occurred. Specifically, one witness alleged that there was 3 to 4 inches of snow in the area of the incident in the days prior to the accident. The Appellate Division affirmed and held that issues of fact existed as to whether the defendant’s created the icy or slushy conditions. This decision serves as a reminder for property owners that when piling snow on their property to be careful that it does not create a dangerous condition. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Insurers Permitted To Intervene In Human Trafficking Suits (PA) October 14, 2021 < Back Share to: On October 7, 2021, the Pennsylvania Superior Court permitted insurers to intervene in cases brought against insureds arising out of alleged sex trafficking operations. A.H. v. Roosevelt Inn, LLC, et al, 1797 EDA 2020 (Pa. Super. Ct. Oct. 7, 2021). The plaintiff, an alleged victim of human trafficking, sued numerous defendants asserting that she was “exploited by traffickers of commercial sex acts and those who financially benefits from her exploitation.” The defendants allegedly knew of the sex trafficking at their premises and failed to prevent the activity or otherwise notify authorities of same opting instead to profit from the activity. The Complaint stated multiple claims for negligence, some arising out of the Pennsylvania sex trafficking statute, negligent infliction of emotional distress, negligent hiring, training, and/or supervision, as well as punitive damages. The insurers of some defendants filed petitions to intervene in the underlying suit solely requesting to submit a specific jury interrogatory and verdict slip to ensure that het basis of the jury’s finding is clear so the carriers could make coverage determinations. More specifically, the insurers sought instructions to determine whether any punitive damages award was based on direct or vicarious liability and whether the jury found that a given defendant violated the Pennsylvania trafficking statute. The trial court denied the petition. The insurers appealed, raising four issues for review. First, whether the court has jurisdiction to hear the interlocutory appeal. Second, whether the trial court abused its discretion by misapplying prior precedent regarding the right to intervene for purposes of securing a record that will identify whether any verdict is based on a claim for which indemnification may be barred by public policy. Third, whether the trial court abused its discretion by denying the petition on the grounds that the insurer’s interests are adequately addressed by counsel retained to represent the insured. Four, whether the trial court abused its discretion by denying the petition without a hearing. The Superior Court agreed with the insurers as to the first issue, finding that the denial was a collateral order separate from the main cause of actions because the right involved is too important to be denied. In evaluating the factors, the Court considered the following dispositive facts: (1) the right to intervene could not be resolved without addressing the addressing the merits of the underlying action; (2) resolution of the underlying action will not resolve the indemnification questions for the insurers; and (3) the insurers would be denied the ability to submit jury interrogatories or a special verdict form at the close of trial absent intervention. The Court considered the remaining questions together. In Pennsylvania, intervention is governed by two procedural rules: (1) Rule 2327 which governs who may intervene; and (2) Rule 2329 which provides the method for intervention. Rule 22329 expressly contemplates a hearing. The Rule states: “[u]pon the filing of the petition and after a hearing, of which due notice shall be given to all parties.” The trial court here failed to hold a hearing. The Superior Court concluded that the trial court “manifestly abused its discretion” in denying the petition. In holding that an insurer has a right to interevent to propose a special verdict form and jury interrogatories to assist in coverage determinations regarding indemnification, the Court relied on a case from earlier this year, Bogdan v. AM Legion Post 153 Home Ass’n, 2021 PA. Super. 127 (Pa. Super. Ct. June 23, 2021). In Bogdan, the court permitted a liquor liability insurer to intervene for the purpose of issuing special interrogatories to the jury’s verdict which would assist the insurer in subsequent coverage determinations. The trial court’s reliance on the fact that the insured’s counsel could address coverage issues was misplaced. The Superior Court agreed with the insurers that defendant counsel is “not expected to address any insurance coverage issues.” In so holding, the Superior Court noted the obvious potential for conflicts arising out of situations in which defense counsel is retained to represented the interests of individual defendants while simultaneously representing the interests of insurers who could have a duty to indemnify the defendants. The trial court’s order was reversed and the case remanded. Thanks to Jennifer Seme for her contribution to this post. Please contact Jennifer with any questions. Previous Next Contact

News Question of “Grave Injury” Resolved By Court on Summary Judgment (NY) July 10, 2020 < Back Share to: Judge Gerald Lebovits, New York County Supreme Court, recently ruled in favor of plaintiff-insurer Utica Mutual on its motion for summary judgment that its policy was not triggered, finding the policy exclusion for liability assumed in a contract to be unambiguously applicable to claims for contractual indemnification in the underlying lawsuit, but also that the underlying plaintiff could not be said to have suffered any “grave injury” as that term is defined in the Workers Compensation law, based upon the plaintiffs’ representations about his injuries as set forth in the bill of particulars (as supplemented) filed in that action. By way of background, Utica had issued a Workers Compensation and Employers’ Liability policy to defendant Litric Contracting. The plaintiff in the underlying action, Ivan Condo, was a Ltiric employee, injured during a construction site accident after falling from a ladder. The Court quickly dispensed with the issue of insurance coverage for any contractual indemnification claims asserted against Utica’s insured, Litric, holding that the exclusion barring any coverage for “liability assumed [by the insured] in a contract” was properly advanced by Utica. However, under the Workers Compensation policy, Utica would owe coverage for any common law indemnification and contribution unless the insurer could establish that the Condo did not sustain a “grave injury”. Condo’s bill of particulars described his alleged injuries as including injuries to the right and left shoulders, the right and left knees, as well as to the lumbar and cervical spine. However, as Utica argued in its motion for summary judgment, Plaintiff Condo testified at his deposition that he was able to “raise and lower” both arms, and to walk with a cane. Thus, Utica asked the Court to determine that Condo did not suffer a grave injury as a matter of law. Defendant Litric argued that discovery concerning the extent and severity of Condo’s injuries was still needed in order to conclusively determine the extent of the injuries, but the Court disagreed. Ultimately, the Court held that based upon the Plaintiffs’ bill of particulars, Utica had successfully satisfied its prima facie burden to demonstrate that no grave injury had been suffered, noting that while the Condo identified serious injuries, he had not set forth any permanent and total loss of use of any extremity, or a total, permanent disability. While the Court noted the deposition testimony cited by Utica describing, the Court’s decision hinged upon the failure of the bill of particulars to set forth injuries that constitute a grave injury. Thus, this case is a good reminder for WC insurers to scrutinize a bill of particulars, as they did here, because the Court may deem further discovery unnecessary to find that the threshold for such an injury has been met as a matter of law Thanks to Vivian Turetsky for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Iron Worker... Ladder... Elevation... No Labor Law § 240 Claim (NY) January 26, 2017 < Back Share to: Labor Law § 240 requires property owners, construction companies, and contractors to protect their workers from elevation-related risks, and holds them strictly liable for plaintiff’s injuries if they fail to do so. Counsel in Labor Law cases therefore spend large amounts of time and effort litigating whether plaintiff’s injuries implicate Labor Law § 240, as the answer will often significantly affect a case’s value. The Second Department’s recent decision in Guallpa v Canarsie Plaza, LLC informs us, however, that not all plaintiffs injured off the ground may assert Labor Law § 240 claims. In Guallpa, plaintiff, an iron worker, was standing on a ladder while working to secure an overhead steel beam to the building structure. While plaintiff was working, another employee, operating a forklift at ground level, struck a portion of the beam plaintiff was working on. This caused the beam to shift and, unfortunately, pinned plaintiff’s arm between the beam and a nearby concrete wall, inflicting injuries. Both plaintiff and defendants cross-moved for summary judgment as to plaintiff’s Labor Law § 240 claim, and the trial court denied both motions. On appeal, the Second Department reversed the trial court decision and granted summary judgment to defendants. The Second Department, focusing on the purpose of Labor Law § 240, noting that while the law is meant to protect workers from elevation-related risks, merely working above ground level does not automatically entitle workers to its protections. Specifically, the Second Department identified Labor Law § 240 as guarding workers against two types of risks: elevation-related (a worker falling from a height) and gravity-related (objects falling from a height onto the worker). Therefore, the Second Department concluded, because plaintiff was not injured by either a falling object or by falling from a height, he could not properly assert a claim under Labor Law § 240. Unfortunately for defendants, the Second Department then reversed the trial court’s ruling that they were entitled to summary judgment on plaintiff’s Labor Law § 241(6) claim, holding that they had failed to offer facts sufficient to refute plaintiff’s claim that the steel beam that injured him was improperly secured pursuant to a potentially applicable Industrial Code provision. Guallpa serves as a reminder to all Labor Law defense practitioners to carefully scrutinize a plaintiff’s bill of particulars and deposition transcript to establish the precise mechanism of plaintiff’s injury. In a field where ladders and heights often indicate increased settlements and damages awards, be sure to establish if plaintiff is in fact entitled to assert a Labor Law § 240 claim. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News NJ Court Affirms PIP Insurer's Right To Settle Even If Policy Limits Are Exhausted For Other Claims December 21, 2009 < Back Share to: Marilus Rodriquez suffered personal injuries in a motor vehicle accident with medical bills for treatment totaling $623,677. The Allstate policy providing PIP benefits to her had $250,000 per accident limits. After Allstate paid $250,000, another unpaid provider, Endo Surgical sought additional benefits over the Allstate policy limits. It argued that while its demand for arbitration was pending, Allstate had a duty to notify it that the insured's PIP benefits were going to be exhausted. The appellate division rejected this argument and affirmed , finding that, absent bad faith, an insurer may settle with one claimant, notwithstanding that the settlement may exhaust the policy limits available for other claimants. http://www.judiciary.state.nj.us/opinions/a2146-08.pdf Previous Next Contact

News Sea Change in Classification of Employees vs. Independent Contractors? (CA) October 15, 2019 < Back Share to: On September 19, 2019, California governor Gavin Newsome signed a bill into law essentially reclassifying independent contractors as employees. Whereas the past classification turned on the degree of control an employer exerted on a worker, the new California test looks to whether the work performed is of the same kind as the main business of the employer—i.e., package delivery for a delivery company. We have posted on this issue in the past, as it has pertained to a claim against Uber in Pennsylvania. In New York, Governor Cuomo spoke approvingly about passing a similar piece of legislation. A bill to reclassify independent contractors was introduced in the New York State Senate earlier this June, and a coalition including the New York Taxi Workers Alliance, the New York Nail Salon Workers Association, the Legal Aid Society, and 32BJ SEIU is currently pushing for legislation Gov. Newsome just signed in California. These statutory reclassifications of independent contractors are on paper limited to traditional employee benefits, such as overtime and minimum wage protections, workers compensation and unemployment insurance, and do not extend to tort claims, thus leaving in place the control-based test for determining whether a worker is an employee and an employer is in turn vicariously liable. In New York, the test for determining a worker’s classification for purposes of worker’s compensation is similar to that applied in a tort action: both turn on control exerted upon the worker by the employer. Although similar, the tests are not identical, and it can happen that the same worker may simultaneously be an employee for purposes of workers compensation and an independent contractor in a tort action. This apparent conflict is actually a peaceable one, and New York Courts have routinely held that a finding of “employee” for workers compensation purposes does not disturb a finding of “independent contractor” in a tort action. As a practical matter, employers might be less willing to grant a worker the same flexibility enjoyed by a contractor in matters like setting his own hours if the employer were on the hook for the various costs associated with a traditional employee. That increased control over the worker could have the result of triggering employee status within the tort law realm. This new reclassification something to keep an eye on, within and without New York State. Thanks to Jon O'Brien for his contribution to this post. Please email Brian Gibbons with any questions.     Previous Next Contact

News Devil Is in the Details in NY Settlement Checks. March 16, 2012 < Back Share to: In the case of Fleischman v. New York Life, New York’s First Department was confronted with the question of what constitutes accord and satisfaction. The specific issue before the court was whether the defendant’s tender of a refund check, and the subsequent cashing of that check by the plaintiff, indicated that the plaintiff had accepted a full resolution of the disputed claim. In affirming the trial court, the First Department ruled that it did not as there was nothing on the check or in the transmittal letter enclosing the check that indicated that the check was tendered “only on the condition that it was in full payment of the disputed claim.” The moral of the story is that the devil is in the details. If you think the issuance of a check fully resolves a claim, then you need to make that clear. Otherwise, you can be left with dangling participles that will have to be cleaned up later. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact