News There’s S(no)w Proximate Cause (NY) February 7, 2018 < Back Share to: In Tchouke, et al. v. The City of New York and Montefiore Medical Center, the Appellate Division, First Department, upheld a Supreme Court decision dismissing plaintiff’s complaint against Montefiore Medical Center. The plaintiff alleged that he was injured upon exiting his car when he slipped and fell on snow and ice alongside the sidewalk abutting Montefiore’s property. Though the plaintiff claimed that Montefiore negligently failed to clear a path between the street and sidewalk, the court held that Montefiore’s conduct was not the proximate cause of the plaintiff’s injury. Montefiore had no duty to place a path between the street and the sidewalk, not on hospital property, at the spot where plaintiff parked his car. In reading through the decision, we were struck by the nonsensical nature of the claim, which plaintiff's counsel sought to pursue through motion practice and even appellate practice. In light of recent decisions highlighting the high standard to obtain summary judgment, perhaps plaintiff's counsel felt this claim was worth a roll of the dice. Thanks to Alicia Massidas for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

Construction accidents often involve catastrophic injuries, significant wage claims, and extensive life care plans for future medical treatment. To properly defend these high stakes cases, counsel needs to be expert in more than the applicable legal defenses. Counsel needs to know the dynamics of the specific industries, the substantive worksite defenses, and, most important, how to transfer the risk to the proper party pursuant to contract or liability position. WCM lawyers have represented business owners, investment groups, general contractors, and all types of sub-contractors in construction accidents involving asbestos remediation, scaffolding collapses, fire losses, and the like. We know how to navigate complex contractual provisions and statutory claims, such as the “grave injury” in New York, in order to both pursue and defend claims for contribution and indemnification. WCM teams with physicians, engineers, accountants, economists, and employment experts to mitigate high value damage claims. And we work with construction professionals in drafting contracts and agreements in order to help them manage risk before accidents occur. Construction Litigation Construction accidents often involve catastrophic injuries, significant wage claims, and extensive life care plans for future medical treatment. To properly defend these high stakes cases, counsel needs to be expert in more than the applicable legal defenses. Counsel needs to know the dynamics of the specific industries, the substantive worksite defenses, and, most important, how to transfer the risk to the proper party pursuant to contract or liability position. WCM lawyers have represented business owners, investment groups, general contractors, and all types of sub-contractors in construction accidents involving asbestos remediation, scaffolding collapses, fire losses, and the like. We know how to navigate complex contractual provisions and statutory claims, such as the “grave injury” in New York, in order to both pursue and defend claims for contribution and indemnification. WCM teams with physicians, engineers, accountants, economists, and employment experts to mitigate high value damage claims. And we work with construction professionals in drafting contracts and agreements in order to help them manage risk before accidents occur. Practice Lead Georgia Coats Partner +1 212 267 1900 gcoats@wcmlaw.com Download Download

News "Threshold" Motions harder to come by in NY October 3, 2012 < Back Share to: Last year in December 2011 we reported that the Court of Appeals rejected a rule that would make "contemporaneous quantitative measurements" a requirement in demonstrating a serious physical injury in a New York motor vehicle accident lawsuit. See Perl v. Meher, 18 NY3d 208 (2011). As a result, range of motion tests are not necessary immediately after an accident in order to prove a serious physical injury. The Court reasoned that a post-injury treating physician is concerned abut treatment of symptoms, as opposed to range of motion tests. The ramifications of this ruling are significant, because plaintiffs now need less evidence to demonstrate serious physical injury. The implications of this previous ruling were felt in the recent decision of Njie v. Thompson. New York Supreme Court Judge Silver granted defendant's threshold motion under NY. Ins. Law §5102, because plaintiff's range of motion was presently normal, and his MRI revealed no tears. The First Department reversed, because plaintiff's initial treating physician diagnosed a shoulder tear, establishing the requisite causation. Plaintiff's trial expert found some limitation in ROM. The Njie court held that under Perl, no further contemporaneous tests were required to defeat defendant's threshold motion. The Perl decision seemingly gives courts another basis upon which to deny (or discourage the filing of) threshold motions, as evidenced by its decision in Njie. Thanks to Brian Gibbons for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News Condo Board Gets Owned For Labor Law §240 Claim August 3, 2016 < Back Share to: New York’s Labor Law §240 imposes strict liability as to property owners with respect to elevation related injuries. In Jerdonek v 41 W_ 72 LLC, the First Department grappled with how to define an owner of the common elements in a condominium building. In Jerdonek, the plaintiff was injured in a fall from a scaffold while working in the boiler room of a residential apartment building on the Upper West Side of Manhattan. Plaintiff fell from an improperly constructed scaffold and the evidence on the record demonstrated that plaintiff was not provided with proper safety equipment. The appellate panel agreed that the plaintiff was entitled to summary judgment under Labor Law §240, and the appellate court majority ruled that liability applied to the condominium’s Board of Managers. The issue was whether the plaintiff could also maintain a Labor Law claim against the development sponsor who retained ownership interest in some units in the building at the time of the injury when control of the building’s common elements had passed to the Board of Managers some six years prior. In determining that plaintiff’s valid labor law claims should not stand against the condominium’s sponsor or the individual unit owners, the majority opinion held that the conversion of the building to a condominium placed its common elements “solely under the control of the [condominium's] board of managers” pursuant to the Condominium Act, which “recogni[zes] that the board exercises exclusive control over the common elements.” Under these circumstances, the First Department granted summary judgment in favor of the sponsor, 41 West 72 LLC and dismissed the claims under Labor Law §§ 240(1) and 241(6) as against it. At the same time, because the record established that the board of managers was the proper party to be sued as owner of the building’s common elements, the court went one step further and granted plaintiff summary judgment as to liability on his claim under § 240(1) as against the board upon a search of the record. The court felt that the decision was sound despite the fact that 41 West 72 LLC had retained ownership of some units in the building since its conversion to a condominium. Each unit owner — including the sponsor of the condominium conversion— owns an undivided fractional interest in the real property comprising the condominium's common elements. However, a unit owner's ownership interest in the condominium's common elements does not give rise to liability, whether for common-law negligence or under the Labor Law, because the condominium declaration transfers complete and exclusive control of the common elements to the Board of Managers. In essence, the unit owners, though they collectively own the common elements, are divested of the powers and responsibilities of ownership with respect to those elements. The majority reasoned that barring the claim against the sponsor also protects and maintains the expectations of the individual unit owners of condominiums. “If the sponsor of condominium conversion could be sued on a post-conversion cause of action arising from the common elements based on the sponsor's continued ownership of unsold units, it would follow that each individual unit owner could be sued on exactly the same ground.” Even if the sponsor, at the time the claim arose, continued to own a sufficient number of units to enable it to control the condominium's Board of Managers, the majority’s analysis would not change. According to the opinion, which relied on a previous decision of the same court, plaintiff cannot sue all of the individual unit owners on the ground that the owners collectively control the board of managers, absent a showing that the condo lacked a functioning and adequately capitalized Board of Managers at the time of plaintiff's accident. Ultimately, the majority found that the board is the proper owner for labor law purposes on a claim arising from an accident in an area that was under the exclusive control of the board of managers, despite the fact that the only deed recorded evinces the condo’s sponsor as the only titled owner of the building. In dismissing the statutory claims against the titled owner, the majority claimed that the dissent’s argument was “sharply at odds with the expectations of buyers of condominium units, who are led to believe that risks and liabilities arising from the common elements will be handled on their behalf by the board of managers.” Thanks to Vincent Terrasi for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Pennsylvania Landowners Also Have a Duty to Protect Invitees from Intentional Harm August 26, 2022 < Back Share to: In Massaro v. McDonalds Corporation, the Pennsylvania Superior Court found that landowners had an affirmative duty to protect invitees from intentional harmful acts of third parties. On September 21, 2018, the plaintiff, Thomas Massaro, went to a McDonald’s restaurant in Philadelphia to tutor a student. While tutoring the student, a man named Bryant Gordon entered the store and began berating Massaro with racial slurs and hateful remarks. The beratement went on for an hour while McDonald’s staff watched. Massaro repeatedly asked McDonald’s staff to intervene or call 911; however, they did nothing. Bryant physically threatened Massaro and the student and said that he would harm them. Massaro fell during the assault and suffered injuries to his skull. Massaro filed suit against McDonald’s, alleging it was negligent by failing to prevent the attack. In response, McDonald’s filed preliminary objections to the complaint in the nature of a demurrer. Specifically, McDonald’s asserted that the complaint had no legal basis as McDonald’s did not owe a duty to Massaro because (1) Massaro assumed the risk of an attack by remaining in the McDonald’s; and (2) McDonald’s did not have a duty to prevent Massaro from intentional harm. The trial court granted McDonald’s preliminary objections, but Massaro appealed. The Pennsylvania Superior Court reversed reasoning that a landowner has an affirmative duty to protect invitees not only against known dangers, but also against dangers that might be discovered with reasonable care. In Massaro’s case, it was clear that the danger presented to him was clear to McDonald’s employees. Further, Massaro did not assume the risk of an attack. There were no facts indicating that before he went to the McDonald’s he had information that the attacker would be there. Further, it was apparent on the complaint’s face that Massaro feared further harm if he left and the Court thus took issue with the business’ failure to prevent the harm. Thanks to John Lang for his contribution to this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News NJ Court Considers Insanity Defense in Coverage Case January 13, 2011 < Back Share to: Electric Insurance Company issued a homeowners policy to Teddy Marcantonis, who, in December of 2008, murdered the lover of his ex-girlfriend, Joe Martorana. He then committed suicide by lighting his car on fire while it was parked at his ex-girlfriends farm. Martorana’s estate later filed a wrongful death action against the Marcantonis estate. EIC agreed to defend the action under a reservation of rights, and filed a DJ to establish that it did not owe any coverage under the policy. EIC argued that the murder did not qualify as an “occurrence” under the policy because it was not accidental. The defense, however, produced expert reports that alleged that Marcantonis suffered from a significant psychiatric disorder that deprived him of the ability to govern his conduct with reason. Thus, the defense argued that the murder was not intentional and instead an accident – which would trigger coverage. The court seemed to consider the merits of the argument, but found that there was no objective support for the claim that Marcantonis suffered from a psychiatric disorder, and instead pointed to the facts that showed the murder was premeditated. We agree with the outcome, but are curious if the Court would have actually found the “insanity defense” viable in this coverage dispute with a different set of facts. http://docs.justia.com/cases/federal/district-courts/new-jersey/njdce/1:2009cv05076/233345/42/ If you have any questions or comments, please e-mail mbono@wcmlaw.com Previous Next Contact

News Can't Use Facebook To Serve Process June 13, 2012 < Back Share to: Last week we posted that NY state courts are permitting discovery of Facebook accounts in certain contexts. This week, a federal court judge in the Southern District of New York rejected a request to use Facebook as an alternative means of serving process on a hard to find third-party defendant. In Fortunato v. Chase Bank, Chase wanted to use Facebook to locate and serve the third-party defendant who had a history of providing inaccurate addresses. Chase argued that this history prevented its investigators from locating the sought after third-party defendant through normal channels. Although the judge agreed that service by normal means was impractical, he would not allow Chase to use Facebook to locate and serve the third-party defendant stating that Chase had not set forth any facts that would give the court some degree of certainty that the Facebook profile their investigator found was in fact maintained by the third-party defendant. The court, instead, allowed service by publication in four local newspapers to cover areas where the third-party defendant had listed addresses. If you have any questions or comments about this post, please email Nicole at nbrown@wcmlaw.com . Fortunato v. Chase Bank USA Previous Next Contact

News One Word Makes All the Difference: PA Supreme Court to Weigh In on UIM Rejection Form June 8, 2016 < Back Share to: May 24, 2016, the Pennsylvania Supreme Court agreed to review a relatively discreet issue regarding the validity of an underinsured motorist coverage (“UIM”) rejection form in Ford v. American States Insurance Company. Specifically, the question before the Pennsylvania Supreme Court is whether an insurer’s UIM rejection form “specifically complies” with Pennsylvania’s Motor Vehicle Financial Responsibility Law (“MVFRL”). The underlying facts of the case arise out of a 2013 motor vehicle accident. Alisha Ford was seriously injured in a motor vehicle accident and sought UIM coverage from her mother’s insurer, American States Insurance Company (“American”). American rejected Ford’s request for UIM benefits because Ford’s mother explicitly rejected UIM coverage. Ford’s main contention is that her mother’s rejection form is invalid because the rejection form does not “specifically comply” with § 1731(c) of the MVFRL, which provides the form to be used in the context of rejection UIM coverage. The interesting part of Ford’s contention is that the rejection form signed by her mother and the form language in § 1731(c) only differs by one word. Specifically, the rejection form that Ford’s mother signed states, in part, that “Underinsured motorist coverage protects me and relatives….” Conversely, § 1731(c)’s rejection form states, in pertinent part, “Uninsured coverage protects me and relatives…” Accordingly, the only difference between the two forms is the inclusion of the term “motorist.” Both the trial court and the Superior Court found that the addition of the word “motorist” had no impact on the validity of the UIM rejection form. The Supreme Court’s decision on the issue will come down to whether strict compliance with § 1731(c) is required in order for a UIM rejection form to be valid. It will be interesting for sure to see how the Supreme Court rules in this regard. Thanks to Erin Connoly for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Pizzeria's Paltry Proof Precludes Summary Judgment (NY) June 2, 2016 < Back Share to: In Costello v Pizzeria Uno of Albany, Inc., the Third Department recently explained how both plaintiff and defendant could survive their opponent’s post-discovery summary judgment motions through a minimal evidentiary showing. In 2011, plaintiff Barbara Costello went to lunch with two co-workers at the defendant’s pizzeria, and she fell and injured her foot. She brought suit against the defendant for failing to maintain the floor in a reasonably safe condition. At the close of discovery, plaintiffs moved for summary judgment on liability, and defendant cross-moved for summary judgment dismissing the complaint. The trial court granted defendant’s cross-motion and plaintiffs appealed. The Appellate Division, Third Department, reversed, because plaintiffs raised a triable issue of fact even though they were “unable, or perhaps unwilling to immediately ascertain the cause” of the fall. In plaintiff’s affidavit, she stated that the wooden floor was bowed, “and did not provide a proper walking surface.” Further, plaintiff produced two non-party witnesses, her co-workers, who confirmed that the floor appeared buckled, and that the unevenness of the floor made it feel like walking down a ramp. According to the Third Department, the trial court misplaced its focus on the defendant's claims that plaintiff’s unscientific evidence was insufficient to raise a triable issue of fact. Indeed, the defendants pointed to plaintiff’s affidavit, indicating that she merely “believe[d]” that the bowed floor caused her to fall. The Third Department noted that plaintiff’s use of “believe” was simply a figure of speech, and did not defeat her claim. Lastly, and perhaps most critically, defendant’s evidence was insufficient to remove all questions of fact. Even after the close of discovery, defendants never offered any “objective physical data, measurements, or an evaluation of the floor surface.” Instead, they relied on low quality photographs, and the statement of one restaurant manager who did not witness plaintiff’s fall. The defendants failed to produce any incident reports or any testimony from anyone who was actually present at the time of plaintiff’s injury. Because neither party presented enough evidence to “render other causes [of her fall] sufficiently remote such that the jury [could] base its verdict on logical inferences drawn from the evidence, not merely on speculation, the court reversed the trial court’s order. The message here is that a motion for summary judgment on a premises liability case like this one needs to leave no stone unturned in demonstrating the absence of liability. We suspect a well written engineering inspection report would have prompted a different outcome. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News No Coverage In Toxic Torts Case Where Policy Issued After Injury Manifested January 7, 2009 < Back Share to: The Appellate Division recently decided in Polarome International, Inc. v. Greenwich Insurance Company, that a CGL policy does not cover claims asserted against a manufacturer when the subject policy was issued after the claimant's initial manifestation of injuries. Generally, under the New Jersey “continuous trigger theory,” injury occurs during each phase of environmental contamination, i.e. during exposure, progression of injury after exposure ends and manifestation of disease. In Polarome, the policies in question were issued after exposure ended and after the claimants first manifested their injuries. Thus, the court reasoned that the policies did not provide coverage because the “occurrence” ended before the policy periods commenced. In essence, the court concluded that when exposure has already ended, the “occurrence” itself ends after the claimants’ initial manifestation of disease. Also of interest, the court determined that the insurers could examine extrinsic evidence not included in the complaint in order to determine when the claimants’ injuries initially manifested, but only in instances where the claimants’ underlying complaint was ambiguous as to the exact date of first manifestation. http://www.judiciary.state.nj.us/opinions/squibs08-09.pdf Previous Next Contact

News NY's First Department examines occurrences in the popcorn lung context. October 31, 2007 < Back Share to: In the case of International Flavors & Fragrances, Inc. v. Royal Insurance, et al., the plaintiffs sought coverage for personal injury claims filed by its workers who were exposed to butter flavoring containing diacetyl and other volatile organic compounds at a microwave popcorn packaging plant in Jasper County, Missouri. The workers alleged that the exposure resulted in lung impairment and other respiratory system injuries. The defendant insurers accepted coverage but sought to employ multiple deductibles -- deductibles that were quite high. The plaintiffs objected and filed suit. In affirming the lower court's grant of summary judgment, the First Department held that under the policies' definition of occurrence, "the exposure of numerous persons to a hazardous condition cannot be deemed a single "occurrence" in the absence of any identifiable precipitating event or accident." http://www.courts.state.ny.us/reporter/3dseries/2007/2007_08122.htm Previous Next Contact

News What Happens When Trial Court Permits Plaintiff’s Doctor to Testify that the Defense’s Independent Medical Doctor is paid by an insurance company? A mistrial, according to New York’s First Department November 19, 2021 < Back Share to: Evidence that a defendant carries liability insurance is generally inadmissible at trial, so when a trial witness spills the beans as to the existence of insurance, a mistrial may be warranted. While a mere reference to insurance will not always result in reversal, New York’s First Department recently held that notifying a jury that an insurance company is generally responsible for hiring doctors to perform independent medical examinations (“IME”) is enough to remand a case for a new trial. In Campbell v. St. Barnabas Hospital, 195 A.D.3d 405 (1st Dep’t 2021), plaintiff was injured tripping over a step stool that was placed in the walkway of defendant’s physical therapy clinic. During trial, plaintiff’s doctor was called to the stand and asked if he was aware that plaintiff was examined by another doctor under the guise of an IME. In response, plaintiff’s doctor answered in the affirmative, opined as to the lack of a doctor/patient relationship between plaintiff and the IME doctor, and further stated that IME doctors are “generally hired by an insurance company.” Defendant’s counsel objected to the response concerning insurance and requested a curative jury instruction. However, the Supreme Court did not give a curative instruction, but rather allowed plaintiff’s doctor to further testify that IME doctors are “generally hired by an outside agency” and that IME doctors are “hired solely for an opinion based on [a] bunch [of] records and an examination . . . that is how they’re hired.” Subsequently, defendant’s counsel requested a mistrial, but the Supreme Court denied the motion. On appeal, the First Department reversed the Supreme Court’s ruling and held that the testimony by plaintiff’s doctor warrants remanding the case for a new trial. The First Department explained that evidence of defendant carrying liability insurance is generally inadmissible, as it is both collateral and prejudicial. Thus, if testimony goes beyond the mere mention of insurance, a mistrial may be warranted. As such, the First Department held that the testimony of plaintiff’s doctor constituted reversible error and that a new trial was warranted. Accordingly, the First Department reversed the Supreme Court’s Ruling. Thanks to Drew Fryhoff for his contribution to this article. Should you have any questions, please contact Thomas Bracken. Previous Next Contact