News Painful Verdict for Pain and Suffering (NY) July 23, 2020 < Back Share to: The Bronx has a reputation for plaintiff-friendly verdicts, and the case of Cabrera v Port Auth. of N.Y. N.J. (2020 NY Slip Op 03993) did not disappoint. Plaintiff, an employee at a Dunkin Donuts franchise at LaGuardia Airport, was involved in an accident with a salt spreading truck in the parking lot during a snowfall. After a jury trial, she was awarded future damages for only a period of three years, yet was awarded $12 million dollars. Fortunately for the defense, the First Department found many instances of reversible error warranting a new trial. First, the court truncated proof on whether the parking lot was public or private, which directly impacted whether the jury should been charged with the recklessness standard set forth in NY VTL §1103 or VTL §1163. This alone was enough for a new trial, but the court had made a trifecta of mistakes. The second error came in precluding defendant’s accident reconstruction expert from testifying. The Appellate Division found the lower court’s in limine inquiry of the expert concerning scientific studies was irrelevant to the subject of his testimony. Additionally, any deficiencies in the expert disclosure could have been remedied by limiting the testimony, not precluding it. Finally, a retrial on damages was necessary because the defense medical expert was improperly barred from testifying on the issue of whether plaintiff’s injuries were traumatically induced and whether the surgeries were necessary and appropriate. Any one of these errors would warrant a new trial, but all three, combined with a future damages award of $12 million dollars for a period of only three years, certainly required a new trial. This case confirms that unsupported and excessive jury verdicts will be scrutinized by the court. Thanks to Mehreen Hayat for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Wade to Speak at NYSBA Seminar September 18, 2009 < Back Share to: The New York State Bar Association has invited WCM partner Dennis M. Wade to lecture at Law School for Claims Professionals. Dennis will be lecturing and conducting a workshop on handling the premises liability claim on October 23, 2009. With assistance from associate Alison Weintraub, Dennis wrote a monograph entitled The Anatomy of a Premises Case which will be published in the course materials. Attached is a brochure with information about the program. If you would like more information about the program or the materials please feel free to contact Dennis or me. Sincerely, Shana Hughes Communications Director NYSBA Announcement Previous Next Contact

News A Triable Issue of Facts Exists as to whether a ‘Trivial Defect’ is Actionable March 21, 2016 < Back Share to: In Hutchinson v. Sheridan Hill House Corp., 26 NY3d 66 (2015), the Court of Appeals recently found “there is no minimal dimension test” or per se rule that a defect must be a certain minimum height or depth to be actionable. Instead, a court must look at all specific facts and circumstances in determining whether a defect is actionable. In Aviles v. Putnam Park Props. LLC, plaintiff lost her footing while descending an exterior three-step stairway of her apartment building. Plaintiff alleged a crack in the concrete of the otpe step and the condition of the bannister caused her fall. The building owner filed a motion for summary judgment arguing the crack in the step was not actionable as a matter of law since it was only one-half of an inch deep. In denying the motion, the court relied on Hutchinson, and found a triable issue of fact as to whether the crack coupled with the alleged bannister defect caused were the proximate cause of plaintiff’s injuries. In light of the recent Court of Appeals holding in Hutchinson, it has become increasingly difficult to move for summary judgment based on a trivial defect. Defendants should flesh out all potential arguments as to plaintiff’s proximate cause to present the strongest defense. Thanks to Caroline Freilich for her contribution to this post.                 Previous Next Contact

News Out-Of-Possession Landlord Escapes the Trap February 2, 2011 < Back Share to: < ![CDATA[Out-Of-Possession Landlord Escapes the Trap]]> Previous Next Contact

News Prime Time To Sue Amazon December 23, 2020 < Back Share to: Amazon has traditionally been exempt from various states’ product liability laws by successfully arguing that Amazon is not a “seller” when it comes to products sold by third-parties through Amazon’s website. Previously, a California Appellate Court overturned a lower court and ruled that Amazon.com played a pivotal role in every step of a plaintiff’s purchase of a replacement laptop computer battery on the online shopping website, making it potentially liable for the personal injuries caused when the battery malfunctioned. We blogged about this decision here. We note that Pennsylvania appeared to be well on its way to determining that Amazon was a “seller” in accordance with Pennsylvania strict liability law. Specifically, a panel of the Third Circuit explicitly held that Amazon was a seller and could be held liable for defective products under some scenarios. We blogged about that decision here. Since that decision, the Third Circuit granted en banc review, vacating the panel decision. The Third Circuit certified the question to the Pennsylvania Supreme Court. However, before a decision on the same was reached, the parties settled. Texas has joined the fray. In federal court, Amazon was sued alongside the erstwhile manufacturer of the alleged defective product. The manufacturer was a Chinese company and was unable to be served. At the close of discovery, Amazon moved for summary judgment, arguing that it was not a “seller” of products, it merely provided a marketplace for the sale. The district court determined that Amazon was indeed a seller under Texas law as it was “an integral component in the chain of distribution” and also, at one point, maintained physical possession of the product. Similar to the Pennsylvania case, the Fifth Circuit certified the following question to the Texas Supreme Court: "Under Texas products-liability law, is Amazon a 'seller' of third-party products sold on Amazon’s website when Amazon does not hold title to the product but controls the process of the transaction and delivery through Amazon’s Fulfillment by Amazon program?" This will be an interesting case to watch as Amazon is a dominant and ubiquitous force in the marketplace. 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 Plaintiff’s Complaint Saved Notwithstanding Attorney’s Failure to Timely File Affidavit December 28, 2017 < Back Share to: A decision by the New Jersey Supreme Court requires judiciary administrators to begin notifying parties litigating professional malpractice claims of their statutory obligations to file affidavits of merit and to schedule hearings to determine whether those affidavits are satisfactory. In a unanimous ruling in A.T. v. Cohen, the court held that a medical malpractice case should not have been dismissed when an out of state attorney, admitted to practice in New Jersey but unaware of New Jersey’s filing deadlines, failed to file a timely affidavit of merit. The judiciary will now be responsible for notifying parties in malpractice actions of their deadline obligations. The judiciary will use its newly implemented e-filing system to electronically notify malpractice plaintiffs of their obligation to file an affidavit of merit within sixty days from the filing of defendant’s answer to the complaint. The judiciary will also notify litigations of the scheduling of mandatory conferences to determine the validity of the affidavits (known as Ferreira conferences). The Cohen case arose from the birth of a child and the alleged malpractice of doctors and a hospital leading to the child’s birth defect. The plaintiff’s attorney at the time failed to comply with the statute requiring the filing of an affidavit of merit. As a result, the trial court dismissed plaintiff’s complaint. The Appellate Division affirmed, but the Supreme Court reversed, holding that equitable relief should be afforded to plaintiff. The Supreme Court was persuaded that a presumably valid complaint should not be dismissed because of a lawyer’s non-compliance with a statute. Going forward, attorneys are on notice that disregarding the scheduling of a Ferreira conference will not provide a basis for relief from statutory obligations. Thanks to Michael Noblett for his contribution to this post.     Previous Next Contact

News Lack Of Inspection Records Found Fatal To New York Notice Defense (NY) February 25, 2022 < Back Share to: The ability of a New York premises liability defendant to pursue a notice defense may depend on the timing and evidence of property inspections. In Argueta v. 3251 Third Ave. LLC, the Supreme Court, Bronx County recently addressed this issue in a case where plaintiff was injured after being hit by a falling ceiling tile. The defendant moved for summary judgment, arguing that it did not have notice of a problem with the ceiling. In addressing the notice defense, the court stated: “To meet its initial burden on the issue of lack of constructive notice, the defendant must "offer some evidence as to when the area in question was last inspected relative to the [accident]" (citing Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598 [2nd Dept 2008]). The court ultimately found that the defendant could not meet its burden as it did not have any maintenance records for two years before the accident and failed to proffer evidence from someone with personal knowledge as to when the ceiling was last inspected. As such, the court held that defendant failed to establish that it did not have constructive notice of the allegedly dangerous condition and the motion for summary judgment was denied. The Argueta decision highlights the need for New York property owners to conduct regular property inspections and maintain inspection and maintenance records. The failure to do so can result in the loss of a notice defense in a premises liability action. Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

Jason Laicha Counsel Pennsylvania jlaicha@wcmlaw.com +1 267 239 5526 Professional Experience Jason Laicha assists with a wide variety of civil litigation, defending clients against general liability claims concerning property damage, premises liability, construction defects, automobile negligence, and personal injury. Additionally, Jason assists with advising insurers on a wide variety of coverage matters. Jason’s work includes reviewing complex insurance policies to determine the obligations of insurance companies in the wake of bodily injury or property damage and analyzing the impact of contracts for indemnification. Prior to joining WCM, Jason worked with the office of general counsel for a local school district, a boutique business law firm in Philadelphia, and one of the nation’s top consumer protection firms. In addition to the greater Philadelphia area, he has also lived and worked in Dublin, Ireland. Professional Activities Member of the Philadelphia Association of Defense Counsel News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Temple University, Beasley School of Law B.B.A., Villanova University, Villanova School of Business Bar Admissions Pennsylvania New York

News Is Facebook Fair Game For Investigation? October 11, 2010 < Back Share to: Technology almost always advances quicker than the law can keep up with it. However, attorneys may now have some guidance to an unanswered question – is Facebook fair game for investigation? Last week the New York State Bar Association and the New York City Bar Association both issued ethics opinions addressing when lawyers may use Facebook or other social networking sites to aid in litigation. The NYSBA addressed the question of whether an attorney, during a pending action, may view the profile page of a party that is not their client in order to obtain information, including impeachment material. The Association answered that this was an ethical practice, so long as the page was open for “public” viewing. The NYSBA contrasted this with a 2009 Philadelphia Bar Association opinion in which it was deemed fraudulent, deceitful, and against the ethics code for an attorney to have a third-party make a “friend request” to a non-represented witness in order to view that party’s private profile. The NYSBA opinion follows the logic that public information is available for anyone to view, while private information is not. In a very technical and detailed opinion, the NYCBA opined that attorneys or third-parties acting on the attorney’s behalf may send “friend” requests to individuals not represented by an attorney, provided that they identify who they are and why they are making a friend request. Similar to the Philadelphia Bar Association opinion, the NYCBA believes that the ethics code would prohibit attorneys from obtaining private information through deceitful means. While not specifically noted in either opinion, it seems to follow that the ethics code would prohibit sending a “friend request” to an individual represented by counsel. Of course if the party is represented by counsel, but has a public profile, then it would not violate any ethics codes if an attorney were to view the profile. Thanks to Alex Niederman for his contribution to this post. http://cityroom.blogs.nytimes.com/2010/10/01/when-lawyers-can-peek-at-facebook/ NYSBA opinion: http://www.nysba.org/AM/Template.cfm?Section=Home&CONTENTID=43208&TEMPLATE=/CM/ContentDisplay.cfm NYCBA opinion: http://www.nycbar.org/pdf/report/uploads/20071997-FormalOpinion2010-2.pdf Previous Next Contact

News First to Strike? First to File? Court Allows Counterclaim After Statute Runs (NJ) October 27, 2017 < Back Share to: When a plaintiff files litigation on the last day of the statute of limitations, can a defendant file a counterclaim arising out of the same incident? In Veronica Barley v. Arnell Barley, step sisters sought damages from one another for personal injuries after an altercation. The plaintiff sister, Veronica, alleged that her sister, Arnell, scratched her and tried to run her over with a car. She filed suit on the last day of the statute of limitations. Along with Arnell's answer, she counterclaimed that Veronica was the aggressor who had actually injured her. The problem was that her counterclaim was filed after the statute had run. She argued that her claim should be considered as related back to the time of the filing of the complaint. Although the trial judge was unpersuaded, the appellate division found that since the case was pending and the counterclaim was promptly filed, it related back to the original complaint filing date. The court noted that the plaintiff had delayed filing until the last day of the statute (implying this was tactically done) leaving her sister no time to counterclaim. Under these circumstances, the court felt that justice could only be served by allowing the defendant's counterclaim to be heard. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News A Decade Later, New Evidence Vacates SJ Decision September 2, 2021 < Back Share to: In Abrams v. Berelson, venued in Supreme Court, Richmond County, the court granted the plaintiff's motion to renew and set aside an order granting the defendant summary judgment that was granted 10 years earlier. The case stemmed from an accidental shooting that occurred in the home owned by the defendant on November 3, 1997. The plaintiff and a co-worker, Michael Torres, were hired to clean carpets and perform generally cleaning out of the home following the death of the defendant's mother. During the course of the cleaning, Torres found a gun in a bedroom and accidentally shot his co-worker, the plaintiff. In a 2000 decision, the court granted the defendant's summary judgment motion holding that the plaintiff could not establish actual or constructive notice of the injury-producing condition. Specifically, the plaintiff could offer no proof to establish where the rifle was found, whether it was visible and apparent or how long it was present in the house prior to the shooting. In granting the motion, the court stated that the only person who could testify as to the location of the rifle was Torres and at that time, he had given no testimony and could not be located by either party. The plaintiffs, after a diligent search, located Mr. Torres and submitted an affidavit from him in which he admitted that he had made himself hard to find after the police determined the shooting was an accident. He stated the he lived with family members over the years and instructed them to advise others, especially the plaintiff's family, that they did not know how to contact him. Based on this affidavit, Torres' willingness to appear for a non-party deposition and the discovery that the police had not destroyed the rifle in question, the court set aside the summary judgment order and ordered an expedited discovery schedule. Thanks to Maju Varghese for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51515.htm Previous Next Contact

News Bimbo Bakeries Seeks Limits on Its Departing Muffin Man January 29, 2010 < Back Share to: Can a company sue to enjoin a former employee from what it deems is the inevitable disclosure of trade secrets? In determining the answer to this question, all eyes are on Bimbo Bakeries USA, the company that owns Thomas' English Muffins. Bimbo has filed suit against former executive Chris Botticella in United States District Court for the Eastern District of Pennsylvania. The basis of this suit, says Bimbo, is that Botticella is one of fewer than ten people in the world who knows the secret recipe (i.e., nooks and crannies) for Thomas' English Muffins, and signed a confidentiality agreement in March 2009 when he was promoted to manage a facility that makes the muffins. In January 2010, Botticella accepted a position at Hostess Brands Inc., and Bimbo argues that Botticella "will inevitably disclose to Hostess" details of the recipes involved in the confidentiality agreement. Such disclosures would cause irreparable damage to Bimbo, and Bimbo argues that they should not have to sit around and wait to see "nooks and crannies" in Hostess products before seeking relief from the courts. The inevitable disclosure theory is unsettled at best. California courts in particular reject the doctrine, mandating actual evidence of an improper disclosure prior to awarding damages or an injunction. A decision from Pennsylvania is expected in mid-February. Until then Botticella is under a temporary restraining order from starting his job at Hostess. A decision is Bimbo's favor could open doors to a realm of inevitable disclosure litigation. There is no word yet as to whether McDonald's has initiated any "special sauce" suits to date, but they will likely be interested in the court's decision here. http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202439533860&src=EMC-Email&et=editorial&bu=National%20Law%20Journal&pt=NLJ.com-%20Daily%20Headlines&cn=20100127NLJ&kw=Bimbo%20Bakeries%20seeks%20limits%20on%20its%20departing%20muffin%20man&slreturn=1&hbxlogin=1 The complaint can be viewed here: http://newsroom.law360.com/articlefiles/144146-thomas%20hostess%20bakery%20dispute.pdf Thanks to Brian Gibbons for his contribution to this post. Previous Next Contact