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News Hit Pause, Get Hit, Lose Labor Law Protection (NY) April 23, 2021 < Back Share to: In Palermo v. 7 West 21 LLC, the First Department considered the application of Labor Law 240(1) when work has paused for a break. Plaintiff Palermo and his coworker had just pried a wood form off of a wall where concrete formwork was being done. The wood form measured 3 by 3 feet wide, 8 by 12 feet long, and weighed approximately 175 to 200 pounds. Plaintiff asked to take a short break to stop so that he could clear debris from his feet, and then plaintiff rested his side of the wood form on top of vertical piping which protruded about 3 feet out of the ground. After plaintiff had released his end of the form, his coworker suddenly picked up his end of the form, causing the wood to fall off the piping and strike the plaintiff’s foot. Plaintiff moved for summary judgment under Labor Law 240(1), and the trial court denied the motion on the grounds that there was an issue of fact as to whether the accident occurred during the performance of a statutory activity with elevation-related risks requiring that the wood form be secured. The trial court also found that there was a question of fact as to whether any safety device of the kind contemplated in Labor Law 240(1) that could have prevented this accident. On appeal, the First Department unanimously affirmed. Labor Law defendants should take note that the timing of job site accidents may provide grounds for denial of summary judgment if the accident takes place during a break or rest of any kind. Thanks to Shira Straus for her contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Unlicensed Use of Product Trademarks is not Personal and Advertising Injury August 10, 2017 < Back Share to: The Fifth Circuit recently ruled that the duty to defend “personal and advertising injury” did not extend to the unlicensed use of a product and trademarks. In Laney Chiropractic v. Nationwide, Laney sued its insurer for a declaration of coverage after Nationwide refused to defend Laney against allegations of federal trademark infringement, false advertising, deceptive business practice, breach of contract and unfair competition arising out of Laney’s use of soft tissue massage techniques. Nationwide had determined that the lawsuit lacked an advertising, trade dress or slogan claim and refused to cover the defense. The Fifth Circuit reached its conclusion by reasoning that “[w]hen an insured is accused of using another’s product, they are generally not using another’s ‘advertising idea … because without more, taking and then advertising another’s product is different from taking another’s ‘advertising idea’. The court also did not accept that the false-advertising allegation that Laney’s website mimicked underlying plaintiff’s style of doing business constituted a trade dress claim. The court said trade dress protection is not designed for “patent-like rights” in innovative product designs, and “protects the distinctive look of the product, not the functional product itself.” As creative an insured can be in seeking coverage, the underlying claim governs an insurer’s duty to defend. Thanks to Hillary Ladov for her contribution to this post. Previous Next Contact

News Plaintiff’s Counsel’s “Dead Witness” Strategy Backfires May 17, 2016 < Back Share to: The Second Circuit recently demonstrated the consequences of making a strategic decision not to preserve the testimony of an ailing plaintiff: summary judgment in defendant’s favor. In Reginella v. Target Corp., plaintiff fell while exiting a bathroom stall designated for people with disabilities. Plaintiff claimed that the door to the stall closed with “excessive force and speed,” which posed a special risk for elderly and disabled patrons. Over two years after the case was filed and answered, plaintiff passed away of unrelated causes before she was deposed. The court found that the dangerous-door-theory was not supported by direct evidence. As noted by the court, “the only direct evidence with respect to accident causation before the court on summary judgment are four statements made by [plaintiff] shortly after her accident and a video that, although it does not rule out the possibility, does not show that [plaintiff’s] fall was caused by being hit by the restroom door.” As for the remaining, weak circumstantial evidence, the court noted that it might have been enough to justify trial had there been testimony from the plaintiff that the door caused the accident, or even if plaintiff had “died or been rendered incapable of testifying immediately as a result of her fall….” Instead, plaintiff passed away of unrelated causes over two years later. During that time, her testimony could have been preserved, but plaintiff’s counsel made, as the court euphemistically stated, “a strategic decision” not to do so. Plaintiff’s counsel, at oral argument, couched the decision in more blunt and macabre terms: “There could be a strategy why I would not want to have—to preserve her testimony….It’s just that—without making light of it, Judge, sometimes the plaintiff’s best witness is a dead witness.” One has to wonder at the circumstances in which it is preferable to wait for the plaintiff and only direct witness to an incident to die instead of preserving her testimony. In any event, the Second Circuit clearly had very little regard for this strategy. The decision will, ultimately, prove useful in any action where a plaintiff tries to manufacture a theory of causation by defect without direct evidence, and further serves as a cautionary tale as to the consequences of failing to preserve your client’s testimony. Thanks to Chris Soverow for his contribution to this post.       Previous Next Contact