News New York Camp’s Exclusion Of HIV-Positive Child Is Discrimination January 21, 2010 < Back Share to: A federal judge in New York has ruled that a Rockland County basketball camp unlawfully discriminated against a 10 year-old HIV-positive boy when the camp denied admission to the child. Doe v. Deer Mountain Day Camp, 07 CIV 5495. While the court recognized that the camp was obligated to protect other campers from a life-threatening infection, the obligation did not excuse actions based on unsubstantiated fears. The court held that the camp provided no evidence that the infected child posed a direct threat to the health and safety of others. The court noted that the basis of the camps fears, that HIV in stool can survive in swimming pools and that HIV can be transmitted by blood on a toilet seat, did not conform to the prevailing medical consensus, and was not justified through credible scientific evidence. If you would like more information regarding this post, please email David Tavella at dtavella@wcmlaw.com Previous Next Contact

News Claim Of Injury On A City Bus Fails To Take Off From The Ground (NY) May 6, 2022 < Back Share to: In this week’s review, we study a quirky case where a plaintiff sued the MTA Bus Company because she sustained serious injury when she fell from a sudden and violent stop on a New York City bus. (Who among us has not been in this common situation at one point while living in New York City.) In Orji v. MTA Bus Co., NY Slip Op 02811 (2d Dept. 2022), the plaintiff alleged the city bus stopped at a red traffic light at an intersection, causing her to lose her grip on the railing and fall. To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger as a result of the movement of the vehicle, a plaintiff must establish that the movement consisted of a jerk or lurch that was "unusual and violent" (Urquhart v. New York City Tr. Auth., 85 NY2d 828, 830, quoting Trudell v. New York R.T. Corp., 281 NY 82, 85; see, Mastrantonakis v. Metropolitan Transp. Auth., 170 AD3d 823, 824). "Moreover, a plaintiff may not satisfy that burden of proof merely by characterizing the stop as unusual and violent" (Mastrantonakis v. Metropolitan Transp. Auth., 170 AD3d at 824). There must be "objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant" (Urquhart v. New York City Tr. Auth., 85 NY2d at 830). The Appellate court indicated the MTA had the burden of proving the movement of the bus was not unusual and violent. (Mastrantonakis v. Metropolitan Transp. Auth., 170 AD3d at 825). The appellate court opined the MTA satisfied their burden for summary judgment because plaintiff testified that the sudden stop by the bus was not unusual and was not different from the regular jerks and jolts that she experienced while traveling on a city bus. Moreover, the plaintiff said she was the only person who fell after the sudden stop, and she could not testify how fast the bus was traveling before the sudden stop. This case highlights a very specific standard of driving for city bus operators and that standard can be used by carriers in defense of bus companies transporting public passengers. The sudden stop and go traffic experienced by average New Yorkers every day may seem violent at times, but it comes with the territory. As a rule, bus operators with public patrons should always be mindful of any sudden movements which could cause an injury without even colliding with another vehicle. Of course, all of this liability can be mitigated if we simply drive a little slower in the city streets. Thanks to Raymond Gonzalez for his contribution to this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News NJ Court Finds That Endorsement Limiting Scope of “Coverage Territory” Governs February 18, 2021 < Back Share to: The interplay between various endorsements in a policy is not always clear. This is especially the case where multiple endorsements state they are “replacing” the same provisions. A New Jersey federal judge rejected an attempt by an insured to expand coverage beyond the scope of the policy’s plain terms. In so doing, the court reaffirmed that a policy endorsement’s restriction of coverage to a specified location cannot be overridden by another endorsement which does not alter, or otherwise refer to, that aspect of coverage. In FYT Supplies, the insured FYT was a tattoo parlor, which operated out of a location in Brooklyn. Its insurance policy contained a Limitation of Coverage Endorsement provision which stated that the Policy applied only to bodily injury that “[o]ccurs on the premises shown in the Schedule,” which in turn only listed the insured’s location in Brooklyn. In 2018, while at a trade show in the Meadowlands in New Jersey, one of the FYT’s employees was injured while moving certain equipment. The employee sued FYT and FYT sought coverage, which was denied by its insurer. In the ensuing declaratory judgment action, the insurer argued that there was no coverage based on the Limitation of Coverage Endorsement. In other words, because the injury did not occur on the Brooklyn premises listed in the Schedule, but in New Jersey, there was no coverage for FYT in the underlying action. FYT sought to avoid this straightforward application of policy language by pointing to the Policy’s New York Changes Endorsement. That endorsement modified the coverage grant of the Policy and states that coverage exists for bodily injury that takes place in the “coverage territory,” defined to mean anywhere in the United States. FYT thus argued that this language superseded the Limitation of Coverage Endorsement. The court rejected FYT’s arguments, holding that the Limitation of Coverage Endorsement governed, and thus the insurer’s liability was confined to injuries that took place at the insured’s location in Brooklyn. The court noted that the New York Changes Endorsement does not impact the scope of coverage in any way. Thus, the court held that “the language of the New York Changes Endorsement is inserted into a policy which also lists and explicitly incorporates the Limitation of Liability Endorsement.” The court also noted that, perhaps unsurprisingly given its potential impact, no court had yet addressed FYT’s arguments. However, the court held that “[r]eading the … Policy and the endorsements as a whole, it becomes clear that there is only one modification to the precise section at issue, and that modification is contained in the Limitation of Coverage Endorsement. [FYT’s] interpretation would render it meaningless.” While the outcome of the FYT decision seems obvious, it nonetheless affirms the notion that a court will not render certain policy provisions meaningless and frustrate the purpose of the language to which the parties agreed. Thanks to Doug Giombarrese for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Court Resists Urge to Assault English Language, and Enforces Assault Exclusion (NY) May 5, 2017 < Back Share to: Insurers are well aware of the length courts go to in declining to enforce intentional acts exclusions. Even in cases where the intentional nature of alleged misconduct is obvious, courts often refuse to apply intentional acts exclusions. While the reasoning is often artfully worded, the logic often goes something like this - - “well, the defendant may have intended to set that house on fire, but he may not have. Exclusion inapplicable." The Third Department recently resisted this approach in Graytwig v. Dryden. There, the insured was the owner of a bar whose employee allegedly injured a claimant when he forcibly ejected him from a bar. In the underlying action, the claimant alleged that he suffered injuries when the insured’s employee put him in a headlock and pushed him onto an icy sidewalk, where he allegedly hit his head. The insured sought coverage under his policy, which contained an assault exclusion. The exclusion, which stated it was “subject to the terms contained in the General Liability Coverage,” provided that “notwithstanding anything contained herein to the contrary…this policy excludes any and all claims arising out of assault, battery, fight, altercation, or similar misconduct…” The insured argued the exclusion was inapplicable because it was subject to the terms contained in the policy’s general liability coverage. The court rejected this "attempted assault" on the English language, based on the fact the exclusion contained the words “notwithstanding anything contained herein to the contrary.” The insured also argued the assault exclusion was inapplicable because the insured could be held liable under a negligence theory, the implication being that assault is an intentional tort. The court also rejected this argument, based on the reasoning that no cause of action would exist but for the alleged assault. Thus, there was no coverage. Negligence theories can often defeat intentional acts exclusions, but that often isn’t the case when the theory is assault, and the exclusion is specific. An exclusion generally referring to intent is often insufficient, but Graytwig is an excellent reminder that exclusions are more likely to apply when they are specific. Thanks to Michael Gauvin for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Can A Doormat In Front Of A Home Give Rise To Premises Liability? (NY) March 24, 2023 < Back Share to: Under New York law, a homeowner has a duty to maintain his or her property in a reasonably safe condition and there is no duty to warn of or protect against conditions that are not inherently dangerous and are “open and obvious.” Courts address the issue of liability on a case-by-case basis and have generally taken a reasonable approach in cases involving open and obvious household items. For example, in Villalba v. Daughney, plaintiff alleged to have tripped and fell over a mat on the front stoop of the defendant’s home. The trial court granted summary judgment to defendant and the Appellate Division, Second Department addressed the question of whether the mat was considered a dangerous condition. In affirming the decision of the trial court, the Second Department stated that “[W]hether a dangerous or defective condition exists on the property of another so as to create liability 'depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury'". However, summary judgment in favor of a defendant is appropriate where a plaintiff fails to submit any evidence that a particular condition is actually defective or dangerous". In holding that the summary judgment decision was proper, the court ruled that the mat was “not in a defective condition”, was “open and obvious”, and was not inherently dangerous. This decision serves as a reminder that not all fall down accidents involve liability, and plaintiffs must prove that a dangerous condition existed, and that the property owner created the condition or had actual or constructive notice of its existence. Household items which are open and obvious and not inherently dangerous should not give rise to premises liability. Please contact Corey Morgenstern with any questions. Previous Next Contact

News Children's Sporting Event Disturbance Lands Dad on TV July 10, 2012 < Back Share to: We’ve all been to children’s sporting events when tempers flare perhaps more than they should and parents sometimes lose their “filter.” The story told in Rossi v. CBS Corp should serve as a cautionary tale and a reminder to all to keep the games in perspective. In 2006, Mr. Rossi was an assistant coach of his son’s Little League baseball team for ten to twelve year olds. His son’s team, the White Sox was undefeated when it played the undefeated Red Sox. After the game, which the Red Sox won, the boys lined up to shake hands. At that point, Mr. Rossi observed what he perceived as a threatening maneuver by a Red Sox player towards his son, the White Sox pitcher. Witnesses claim that Mr. Rossi used some choice words on the perceived attacker and may have even advanced on the player. As a result of the incident, Mr. Rossi was suspended from coaching and restricted from attending games for two weeks. The incident might have otherwise gone unnoticed, but it was anonymously reported to CBS, who dispatched a reporter to investigate during a rematch of the teams just days later. Mr. Rossi did not like the news coverage that ensued and sued for defamation. The court found that the incident was a matter of “public concern,” i.e. violence erupting at youth sporting events. Thus, the court found that the plaintiff had to meet the standard of actual malice. In other words, the plaintiff had to prove that the statement was false and that at the time made, the speaker knew that it was false or stated it in reckless disregard for the truth. The plaintiff could not vault either of these proof burdens, and summary judgment was affirmed. The moral of the story is that, in this day and age, you never know when you can become the 6 o’clock news item of the night. A calm head and cool approach could be best. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Unwitnessed Accident No Defense to Labor Law January 31, 2011 < Back Share to: In Campbell v 111 Chelsea Commerce, L.P., the Appellate Division, Second Department, upheld the lower court's decision to grant plaintiff summary judgment on her §240(1) Labor Law claim. Campbell was injured when the walkboard of the scaffold on which she was working collapsed. She was the only witness to her accident. On appeal, the defendants attempted to raise a question of fact, arguing that because Campbell was the only witness to her accident, the accident could have been caused by any number of reasons. The Second Department rejected this argument because it was based purely on speculation, and the facts were quite clear that the scaffold’s walkboard had collapsed while plaintiff was working on it. Thanks to Alex Niederman for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00482.htm Previous Next Contact

News Got Privilege? Think Again (PA) March 5, 2021 < Back Share to: In Virnelson v. Johnson Matthey, the Pennsylvania Superior Court addressed whether the defendants were required to disclose an on-site investigative report prepared by an engineering consultant after an accident. The plaintiff in this matter fell to his death after he inhaled excessive levels of nitrogen. Five days later, the defendants retained an engineering consultant to perform a site safety inspection and determine the accident cause. Following its investigation, the consultant prepared a report. Shortly after the report was completed, counsel for the plaintiff sent notice to defendant advising of his representation and later filed suit. During litigation, plaintiff sought disclosure of the report, as well its supporting documents and interviews, and eventually filed a motion to compel, arguing the report was not prepared in anticipation of litigation. The trial court granted the motion and defendants appealed. On appeal, the defendants argued that the report was non-discoverable as expert material retained and prepared in anticipation of litigation. Under Pennsylvania Rule of Civil Procedure 4003.5(a)(3), “[A] party may not discover facts known or opinions held by an expert who has been retained or specifically employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial,” except in exceptional circumstances by order of the court. The Pennsylvania Superior Court disagreed with the defendants, finding that the investigative report was discoverable. In support of its ruling, the Court relied upon deposition testimony by defendants’ employees stating that the report was prepared to examine and implement changes in safety protocols, as well as the non-privileged nature of the consultant’s retainer. For those reasons, the Court determined the report was prepared for a business purpose and not in anticipation of litigation, noting that foreseeability of litigation alone does not preclude discovery. Thanks to Benjamin Ferrell for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News NJ Discovery Sanctions – IME Fees for No Show March 20, 2017 < Back Share to: Defense litigators in New Jersey now have a published trial court decision to support motions compelling plaintiffs to pay an independent medical examination “no show” or “late cancellation” fee. In McInroy v. Village Supermarket, Inc., defendants scheduled plaintiff an IME with an orthopedic surgeon. Not having attended her IME, defense counsel re-scheduled it. Plaintiff again failed to attend, and defendants were charged a $375 “no show” fee from the examiner. Defendants re-scheduled the IME, this time expressly advising that plaintiff’s failure to comply with the examiners late cancellation/no show fee policy would result in those fees being passed onto her personally. She once again failed to attend. Defendants filed a motion to compel the IME, and reimbursement of the no show fees. The court ordered plaintiff to reimburse defendants for the missed appointments. Under New Jersey Court Rule 4:19, defendant was entitled to an order compelling the IME and/or dismissing plaintiff’s complaint. Additionally, and because New Jersey trial court judges have broad discretionary powers to impose discovery sanctions which are “just and reasonable,” defendant was entitled to an order compelling plaintiff to reimburse it for the examiner’s now show fees. The Court rejected the notion that plaintiff should be excused from paying the no show fees because her sole source of income was Social Security Disability since it was plaintiff who failed to proffer a reasonable explanation for the failure to keep the appointments. Defense litigators in New Jersey are now armed with the rationale of Judge Savio when moving to compel plaintiff’s to undergo medical examinations, in addition to moving to compel reimbursement of late cancellation/no show fees under appropriate circumstances. Thanks to Michael Noblett for his contribution to this post.       Previous Next Contact

News To Be or Not To Be Cancelled April 19, 2019 < Back Share to: In Chad & Ashley Inc. v. White Pine Insurance, the Pennsylvania Court of Common Pleas evaluated an interesting situation regarding the cancellation of an insurance policy and the delayed delivery of a notice of cancellation. Plaintiff had a policy with defendant with effective dates of October 8, 2015, through October 8, 2016. On January 28, 2016, a fire broke out on plaintiff's property, causing a total loss. Defendant previously sent plaintiff a notice of cancellation which stated the end date of the policy was January 3, 2016. Additionally, the parties' insurance contract provided for a 10-day period of notice. Plaintiff alleged it did not receive this notice until January 15, 2016. The notice stated that the policy would no longer be in force on January 3, 2016, therefore, plaintiff had 15 days to get new coverage if it wanted to do so. Plaintiff interpreted this cancellation notice as providing it with a 15-day notice, so plaintiff concluded the contract ran through January 30, 2016. Consequently, plaintiff filed breach of contract and bad faith claims against the defendant. In an action to determine whether there was coverage under the Policy for the loss, the Court concluded that the 15-day provision was not a grace period, but instead, it stemmed from the specified end date in the notice. Further, the Court found that even if January 15 was treated as the operative start date of the notice period, the 10-day period of coverage did not extend to the date of the loss. Regarding the bad faith claim, the Court reasoned that the plaintiff was required to show by clear and convincing evidence that the insurer did not have a reasonable basis for denying benefits under the Policy, and that it knew or recklessly disregarded its lack of a reasonable basis in denying the claim. The Court found that the insurance contract was not in effect at the time of the loss, and the defendant had a reasonable basis for denying benefits under the policy. Therefore, the court dismissed the bad faith claim as well. This case provides important takeaways regarding sending written notices in connection with changes in policies. It is important for insurers to ask for confirmation of delivery of notices so there is evidence of when a document was delivered. That could prevent later disputes as to when documents were received. Thanks to Malik Pickett for his contribution to this post. Please email Colleen Hayes with any questions. Previous Next Contact

News Going Up? Not via Labor Law 240. March 19, 2010 < Back Share to: Plaintiff James Sinkaus was standing on a ramp at a work site. His co-workers were pushing some sort of cart up the ramp and the cart rolled over the plaintiff's foot. The plaintiff filed a claim under Labor Law 240, claiming that this was a gravity-related accident. The court rejected the plaintif's claim, pointing out that the cart was going up and, of course, gravity operates in the opposite direction. If you have any questions about this topic, please contact Georgia Stagias at GStagias@wcmlaw.com http://www.courts.state.ny.us/reporter/3dseries/2010/2010_01885.htm Previous Next Contact

News Rear-End Hit Not Necessarily Negligence (NY) August 31, 2017 < Back Share to: A rear end hit normally spells liability, but in that rarest of rare cases, a plaintiff just might not be entitled to summary judgment on this issue. The plaintiff, in Greenidge v. UPS, was a passenger in a car rear ended by a UPS truck. The UPS driver testified that the vehicle the plaintiff was in entered his lane suddenly and then braked suddenly, leaving the him with no time to react. The lower court granted the plaintiff’s summary judgment motion, finding that a rear-end collision establishes a prima facie case of negligence. The Second Department reversed the lower court’s decision because the testimony regarding the sudden lane change created triable issues of fact. The court further noted that, even though the parties agreed that the vehicle the plaintiff was in was stopped when it was hit in the rear, the evidence of the sudden lane change and abrupt stop, called into question UPS’ negligence. Thanks to Georgia Coats for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact