News Appellate Court Upholds Defense Verdict In Left Turn Case (PA) April 7, 2023 < Back Share to: In Wilmer v. Bethman, the Superior Court upheld a defense verdict in a case arising from a familiar scenario – a driver attempting to make a left turn is involved in a accident when a second driver coming from the opposite direction pauses and “waives” the first driver through, resulting in a collision with an unseen vehicle passing to the right of the second driver. Plaintiff was driving eastbound on Street Road, which has two lanes of traffic in each direction. Bethman pulled into a separate left turning lane in preparation for entering a housing development across the road. She stopped in the turning lane and waited for westbound traffic to stop. The driver of the car in the westbound turning lane, a police officer, stopped, left a gap, and made a gesture indicating that Bethman should proceed. Bethman waited one second to make sure that the car had stopped. The officer’s car blocked Bethman’s view of the second westbound lane until she began her turn. Bethman successfully turned into the first westbound lane. As she was entering the housing development after crossing over the second westbound lane, a van in which Kristine Wilmer was traveling struck the rear passenger side of Bethman’s car. Wilmer was in the front passenger seat of the van when the collision occurred. She suffered facial injuries when the airbag deployed. Wilmer sued Bethman for her injuries resulting from the collision, and the case proceeded to a jury trial. At the conclusion of her case, Bethman moved for judgment as a matter of law, asserting that Wilmer had violated Section 3322 of the Pennsylvania Motor Vehicle Code governing left turns, and was therefore negligent per se. The trial court denied Wilmer’s motion. At the close of Bethman’s case, Wilmer moved for a directed verdict on the same grounds. The court denied the motion. Wilmer then requested a jury instruction on negligence based on the alleged violation of the left turn statute, and requested that the jury not be charged separately on negligence. The court denied Wilmer’s requests, but in its closing instruction, the court instructed the jury on both negligence and negligence per se. The jury found Bethman was not negligent, and Wilmer moved for judgment notwithstanding the verdict. The court denied that motion and Wilmer’s post trial motion, and she appealed to Superior Court. On appeal, the Superior Court focused primarily on the issue of negligence per se. To prove negligence per se, a plaintiff must demonstrate: (1) the existence of a statute designed at least in part to protect the interests of a group of individuals, as opposed to the public generally; (2) the clear application of the statute to the defendant’s conduct; (3) the defendant’s violation of the statute; and (4) that the violation was the proximate cause of plaintiff’s injuries. The Superior Court found no abuse of discretion in trial court’s conclusion that the evidence was sufficient to permit the jury to conclude that Bethman acted reasonably and waited until she thought it was safe to proceed and was therefore not negligent. Wilmer presented no evidence about the distance between the van in which she was riding and Bethman’s car when it turned left. Thus, there was no evidence that Bethman violated the left turn statute by failing to yield the right-of-way to a vehicle that was so close as to constitute a hazard, and no evidence that a statutory violation caused the accident. Wilmer did not see the collision. She did not present any evidence that the van in which she was riding had a green light, was following the speed limit, or remained it its lane, leaving open the possibility that the van’s driver was contributorily or comparatively negligent and partially responsible for the collision. Although Wilmer claimed that Bethman failed to look as she entered the intersection, Bethman testified without contradiction that she did look for oncoming traffic. Wilmer did not prove that Bethman failed to signal her turn. Interestingly, Wilmer failed to introduce into evidence the ticket that Bethman paid, and failed to cite authority for the proposition that issuance of the ticket alone establish negligence per se. The opinion does not indicate the grounds for the ticket that Bethman received. This case stands for the proposition than a plaintiff must establish all elements to prove negligence per se, and not merely assume the a collision with a vehicle making a left turn will invariably result in liability on the part of the turning driver. Though the opinion did not address the ramifications of the failure to introduce evidence of payment of the traffic ticket, it seems likely that payment of any ticket would effectively be a guilty plea which would have established violation of the statute, thereby justifying a finding of negligence per se. Thanks to James Scott for his assistance with this article. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News Philly: Not as Bad as You Think? April 20, 2012 < Back Share to: We have previously commented, with more than a touch of gallows humor, on Philadelphia’s illustrious rank as the # 1 judicial hellhole in the country. But maybe, Philly is not as bad as you think. The average civil jury award in Philadelphia fell 31% in 2011 – from an average of $1.49 million in 2010 to $1.02 million in 2011. The question is: why? Is it the economy? Poorer quality cases? Or better juries? The problem is – there’s no way to know for certain. So, while Philly might not be as bad as you think it is, there’s still exposure above the standard $1,000,000 CGL exposure. As long as you’re prepared for that contingency, we’re prepared to try your insured’s case. After all, there’s no (legal) rush like the trial rush. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Evidence of Sidewalk Improvements Not Sufficient to Defeat Complaint October 6, 2011 < Back Share to: In Schulman v. 34th Street Partnership, Inc., the First Department unanimously affirmed the trial court's denial of defendant's summary judgment motion where plaintiff claimed personal injuries as a result of sidewalk defects in defendant's property. Defendant, citing that it had made improvements to the sidewalk as part of a business improvement district project was unable to establish entitlement to judgment as a matter of law. The First Department stated that the evidence of improvements presented was insufficient to show that defendant did not create or cause the dangerous defective condition. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_06944.htm Previous Next Contact

News WCM Article on Data Privacy Published in DRI’s “For the Defense” August 3, 2017 < Back Share to: This past week, For the Defense, a publication of the Defense Research Institute, published What To Expect When You're Not Expecting a Data Breach written by Brian Gibbons and Lauren Berenbaum. In the digital age, law firms need to be every more mindful of their status as data collectors, and their responsibility to protect the data that maintain. Especially in the “paperless” world that we are trending toward, the protection of PII is a challenge. Law firms – and our clients – need to implement safeguards to protect against potential breaches. No safeguard is full proof, but we need to take reasonable measures. The article outlines recent legislation in Europe and throughout the United States, which will lacks comprehensive federal legislation regarding data privacy. For any attorneys who are (reasonably) intimidated by the cyber-security world, this article offers some guidance on self-protection, which is essential for defense firms who want to adhere to our clients’ guidelines. If you have questions about WCM’s data privacy and cyber-security practice, please email me. Previous Next Contact

News (Knock on Wood) -- NY Courts Lift Facemask and 3-Foot Physical Distancing Requirements June 17, 2022 < Back Share to: Effective June 16, 2022, New York courthouse visitors, lawyers, judges, and staff will no longer be required to wear masks, with proof of vaccination, in light of receding COVID rates. Also being lifted in the courthouses is the three-foot physical distancing requirement. (The policy identifies a vaccination card or a New York State Excelsior Plus Vaccination Pass as proof of vaccination.) These steps are part of an effort to return the Court to full operations and are a return to the model that was in place throughout the Unified Court System last summer. The changes come as welcomed news to some practitioners who found it difficult to hear statements in Court, have their statements heard, or speak discretely to their clients. Masks also interfered with measuring a witness’ credibility or the ability to develop a rapport with jurors. On the civil side, with many appearances remaining virtual with some exceptions, mask or no mask is of little consequence. But in person, we're getting closer to normalcy. A color-coded system will be in place within the Courthouse Courts with court visitors receiving a white pass and an attorney/agency a green pass that will permit entry without a health safety screening and without wearing a facemask. These passes must be worn on the outermost piece of clothing. The attorney/agency pass will be valid for six months from the issuance date or one year from the date of last vaccination or booster dose, whichever is shorter. Judges and employees of the Unified Court System will display a valid, unexpired orange card to enter all areas of the court without a facemask. Local and national COVID trends will remain closely and thoughtfully monitored, to provide a public compelled to enter the space with the utmost protections and considerations. We will refrain from calling this development "the beginning of the end" of COVID, because, well, we've done that before, and believe in jinxes! Thanks to John Diffley for his contribuition to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News One Warning on Snow Thrower is Enough January 5, 2024 < Back Share to: Plaintiffs cannot insist manufacturers warn against dangers that may arise if warnings that are stated are not heeded. Plaintiff Robert Brewer injured his middle finger when he placed his hand in the blades of a snow thrower he believed to be turned off. Brewer v. Troy-Bilt LLC , 2023 WL 7167564, at 1 (E.D. Pa. Oct. 31, 2023). Brewer brought a claim against the manufacturer of the snow thrower alleging that there “were not adequate warnings on the machine itself alerting him to the danger of cleaning a clog without removing the ignition key.” Id. at 2. The snow thrower's manual contained multiple warning regarding the engines, blades, and their operations. Id. at *1. The machine itself contained “warnings to keep hands and feet away from the blades and discharge chute, and warnings to shut off the engine before using the clean-out tool to clear a clog.” Id. Brewer inserted his hand in the discharge chute to clear a clog in the chute, when the snow thrower allegedly started and the blades began to rotate. Id. While plaintiffs conceded that the warning existed in the manual, plaintiffs argued that that warning should have been additionally placed on the machine. Id. at *3 . Furthermore, the machine had a warning specifically to not place one’s hands in the discharge chute, and Brewer was aware of the warning. Id. However, plaintiffs sought an additional warning “ that would have instructed Mr. Brewer to make sure the machine was fully powered down by removing the ignition key before disregarding the existing warnings and putting his hand in the discharge chute.” Id . The Court discussed a state case with similar facts where an injured employee “ignored warnings to keep her hands out of a meat blender and placed her hands in the blender when she thought it was turned off.” Id. at 4. That employee effectively “request[ed] that the court require a manufacturer to warn against dangers that may arise if the stated warnings are not heeded.” The Pennsylvania Supreme Court in that case, Davis v. Berwind Corp. , 547 Pa. 260 (1997), reasoned that Pennsylvania law “presumes warnings will be obeyed.” Id. at 5. Thus, in the case at hand, it was enough that there was a “sufficiently prominent warning not to place one’s hand in the discharge chute,” id. at 4, and Brewer was aware of that warning. Overall, this stands for the proposition that manufacturers do need not create additional warnings that “are only useful if the current warning is ‘blatantly ignored.’” Id. at 5 (internal citations omitted). Brewer v. Troy-Bilt LLC .pdf Download PDF • 191KB Previous Next Contact

News Store Owes No Duty to Control Unexpectedly Rowdy Patrons (PA) August 23, 2017 < Back Share to: On August 17, 2017, the Superior Court of Pennsylvania affirmed an entry of summary judgment in favor of several defendants in Reason v. Kathryn’s Korner Thrift Shop et al. The case involves a fight at a thrift shop in Philadelphia. On the date of loss, Reason went shopping at Kathryn’s Korner Thrift Shop, where Defendant Riley was a cashier, and her daughter, Thomas, was also present at the store. (Thomas has a history of mental illness, but there is no evidence that she was violent.) As Reason was making purchases at the register, Thomas accused Reason of throwing something at her mother, and Reason and Thomas began fight.Riley pushed a panic button at the store and called the police with her phone. We surmise Reason lost the fight, because she filed suit against Riley, Thomas, the thrift store, and the other owners of the property, alleging various claims for negligence and assault and battery. All of the defendants, except for Thomas, were granted summary judgment. Reason then appealed on the issues of whether the defendants owed her a duty to protect her against acts by third persons and whether they breached a duty to provide aid. In Pennsylvania, there is generally no duty to control the acts of third parties unless a defendant stands in a special relationship with either the actor or the victim. The relationship between a business and its invitee is one of those relationships. Pennsylvania then follows the Second Restatement of Torts section that states that a possessor of land owes a duty to invitees for negligent or intentional acts by third parties only if they can reasonably anticipate such conduct. The court found no evidence that defendants should have reasonably anticipated Thomas’s violent behavior. When it comes to a duty to aid, Pennsylvania has rejected the Restatement of Torts and only imposes a duty upon businesses to call for medical professionals or police when necessary. Businesses and their employees are under no duty to jump into the role of a medic or police officer since this would then place untrained persons in harm’s way as well. The court again affirmed the lower court’s decision and found that because Riley pressed the store’s panic button and called the police on her phone, that she and the other defendants had fulfilled their duty to come to Reason’s aid. As such there was no breach. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Chinese Drywall -- A Big Source of Personal Injury Claims. October 8, 2009 < Back Share to: A new home. The dream of a lifetime. Unfortunately, for many, it is becoming more of a nightmare. Although CPC studies are not due out until later this month, for the moment, courts -- particularly in the south and west where new home construction is most common -- are being flooded with claims that homeowners have developed injuries from houses built with Chinese drywall. Complicating matters is that many of the construction companies that built the houses have limited assets and the Chinese companies are resisting service in the US. In such circumstances, the "logical" target of plaintiffs? Insurance companies. http://www.nytimes.com/2009/10/08/business/08drywall.html?_r=1&scp=1&sq=chinese%20drywall&st=cse http://www.nytimes.com/aponline/2009/09/28/business/AP-US-Chinese-Drywall.html?scp=3&sq=chinese%20drywall&st=cse Previous Next Contact

News Plaintiff’s Slip and Fall Case Doesn’t Hold Water (PA) August 22, 2017 < Back Share to: A Plaintiff was denied recovery in a slip and fall case when a jury concluded that he failed to prove that a water leak caused his injuries. In Bowman v. Giant Eagle, C.P. Allegheny No. GD-14-016640, the plaintiff sued a Giant Eagle grocery store in Pittsburgh, claiming that he slipped on liquid near a water fountain, adjacent to the entrance to the men’s room. The plaintiff alleged that Giant Eagle was negligent in allowing the dangerous condition to exist. In support of his claim, the plaintiff alleged that an employee at the store had walked by the accumulation of water at the time the accident occurred, but did not address the issue. The plaintiff also claimed that the water fountain was leaking and that the store had failed to repair the leak. The plaintiff sustained multiple fractures to his right leg, underwent surgery and had hardware implanted. The plaintiff later participated in physical therapy over the course of a few months, and eventually underwent a second surgery to remove some of the hardware. The plaintiff sought damages for medical costs as well as past and future pain and suffering. Giant Eagle did not dispute the plaintiff’s injuries or his treatment, but did argue that there was no evidence to support the plaintiff’s claim that the water fountain had been leaking. Giant Eagle cited a store manager’s incident report that found no water on the floor and no leaking from the fountain in support of its defense. Ultimately, the jury found that Giant Eagle was negligent, but that its negligence was not a factual cause of any harm to the plaintiff. This case serves as an ever-important reminder that plaintiffs bear the ultimate burden of proving each and every element of their case, and that an effective defense will force plaintiffs to carry this burden at every step of the litigation process. Just because a defendant may have been negligent does not equate to proximately causing a plaintiff's injury. Thanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Nanty-Glo Rule Saves Pocono Pet Store (PA) July 30, 2020 < Back Share to: In Lori Monti v. Pet Supplies Plus LLC, et al. plaintiff Lori Monti (“Monti”) tripped and fell outside of a pet store on an alleged sidewalk defect. Monti claimed that there was a dip in the sidewalk, which was surrounded by loose pieces of gravel. She alleged her walker became entrapped in the dip, which caused her to fall and sustain serious bodily injuries. Monti filed suit against Pet Supplies Plus, who then joined its landlord Pocono Retail Associates to the matter. Ultimately, motions for summary judgment were granted for both defendants. Monti then appealed arguing the trial court erred in finding the sidewalk defect to be trivial and failing to find Pet Supplies Plus acted negligently by allowing gravel to exist on the sidewalk. According to the Superior Court, the facts alleged by Monti are insufficient to overcome a motion for summary judgment. On the date of the alleged incident, Monti and her sister were together. However, a friend of Monti’s returned to the scene approximately 45 minutes later and took aerial photographs of the alleged sidewalk defect. Pocono Retail Associates had produced an expert letter that discussed the triviality of the sidewalk defect. Monti argued on appeal that this letter violated Pennsylvania’s Nanty-Glo rule. The rule states that oral testimony alone cannot be used to demonstrate that there is no genuine of issue of material fact unless it is supported by admissions by an opposing party or opposing party’s witness. The Superior Court acknowledged that Pocono Retail Associates paired its report with Monti’s own testimony from her deposition. Specifically, she testified that the wheel of her walker became stuck in an expansion joint in the sidewalk and that she returned to the sidewalk months later and it “looked fine”. The Court also rejected Monti’s argument on the grounds that she did not provide any evidence, reports or testimony to support her claims except for two aerial photographs that do not clearly show a defect. She herself testified that had no one told her about the dip in the sidewalk, she would not have known what had happened. In regard to her negligence argument against Pet Supplies Plus, the Court remained unconvinced. It stated that Monti did not provide any evidence to show that Pet Supplies Plus had notice of a dangerous condition—the alleged gravel—or caused said dangerous condition. Therefore, the trial court’s decision was affirmed. This case demonstrates that landowners can still fight and win when plaintiffs have little evidence of a defect other than some photographs and sympathy. Thanks to Gabrielle Outlaw for her post. Please contact Vincent Terrasi with any questions or comments. Previous Next Contact

News WCM Opens London, England Office October 15, 2020 < Back Share to: Wade Clark Mulcahy, LLP is pleased to announce the opening of its London, England office located at: Wade Clark Mulcahy, LLP 6 London Street London, EC3R 7LP England 442081592544 Nestled in the heart of the City across from Fenchurch Street Station, WCM’s London office will allow WCM to better serve its Lloyd’s and London market clients. To staff the office, WCM is further pleased to announce that Jeff Weston, a market veteran, has agreed to become WCM’s London Market Representative. Jeff has been a friend of WCM’s for many years and we are delighted to bring him on board. Jeff can be reached at jweston@wcmlaw.com Previous Next Contact

News Vicious Propensity Rule: Not a Protection for All (NY) March 5, 2021 < Back Share to: In Hewitt v. Palmer Veterinary Clinic, PC, 35 N.Y.3d 541, 547, 159 N.E.3d 228, 231 (2020), the plaintiff sustained injuries in the Palmer Veterinary Clinic’s waiting room when a dog attacked her, resulting in bodily injuries. The defendant Palmer raised the vicious propensity rule and argued that it had no prior knowledge of the canine’s vicious propensities. The Appellate Division agreed with Palmer, finding that the clinic “could not be held liable without notice of an animal's vicious propensities", relying on the Court of Appeals precedent dismissing claims against animal owners in the absence of proof of such notice. Plaintiff appealed the Appellate Division’s finding, and argued that the vicious propensity rule should not and does not apply to Palmer, as the rule only applies to owners of dogs known to have the vicious propensities. “An owner of a dog may be liable for injuries caused by that animal only when the owner had or should have had knowledge of the animal's vicious propensities (see Collier, 1 N.Y.3d at 446, 775 N.Y.S.2d 205, 807 N.E.2d 254). “Once such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities” (id. at 448, 775 N.Y.S.2d 205, 807 N.E.2d 254). On appeal, the Court of Appeals agreed with plaintiff that Palmer is “a veterinary clinic, whose agents have specialized knowledge relating to animal behavior and the treatment of animals.” As veterinary clinics “are uniquely well-equipped to anticipate and guard against the risk of aggressive animal behavior that may occur in their practices—an environment over which they have substantial control, and which potentially may be designed to mitigate this risk.” The Court of Appeals concluded that Palmer is not afforded the protections of the vicious propensity rule. Ultimately the court found that defendant Palmer may still be subject to a negligence claim, despite the clinic’s lack of notice of the dog's vicious propensities. Thanks to Marysa Linares for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact