Wade Clark Mulcahy LLP

News Labor Law And The "Construction Area" November 9, 2010 < Back Share to: In Pirog v. 5433 Preston Ct., LLC, Pirog injured his hand while he and his co-workers were stacking pipes on the defendant’s property. Pirog's employer used the defendant’s property to store construction materials for use on various construction projects throughout the City. Pirog commenced suit asserting that the defendant violated Labor Law sections 200, 240(1) and 241(6). The defendant moved for summary judgment, but its motion was denied. On appeal the Second Department reversed the lower court's decision and granted the defendant summary judgment holding that, at the time of his accident, the plaintiff was not engaged in construction work and was not working in a construction area within the meaning of the Labor Law. Thanks to Ed Lomena for his contribution ot this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07912.htm Previous Next Contact

News Exercise ... too risky? (NY) October 30, 2013 < Back Share to: Experts say that exercise is good for your health. But those who participate as weekend warriors or regular gym rats know that exercise can also lead to injury. In fact, injury is recognized as a common risk of sport. As such, those of us who choose to exercise in the face of the risk, do so at our own peril. The plaintiff in Ramirez v. Lucille Roberts Health Clubs, Inc. found out that the courts may not be receptive to claims for common injuries associated with exercise. Ramirez claimed that she was injured while attending one of the defendant gym’s step-aerobics classes. The gym moved for summary judgment, arguing that the plaintiff had participated in over a hundred step-aerobics classes prior to the accident and assumed the associated risks. The lower court granted the motion and the Second Department affirmed. The Appellate Division held that someone voluntarily participating in a recreational activity assumes the commonly appreciated risks. Given the plaintiff’s prior experience, the court found that the plaintiff knew the risks involved in exercising (presumably in a spandex leotard). Special thanks to Georgia Stagias for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Intentional Act Ruled An "Accident" By New York Appellate Court September 22, 2008 < Back Share to: In 2002, Neil Spicehandler was run down by a crazed motorist who jumped the sidewalk in an attempt to "kill as many people as possible." After his death, Spicehandler's estate submitted a claim seeking benefits under the uninsured motorist (UM) and personal injury protection (PIP) endorsements in his auto policy. The adverse driver eventually pleaded guilty to murder in the second degree, admitting that he intentionally caused Spicehandler's death by striking him with his car. State Farm denied the claim on both counts, arguing that Spicehandler's death was not "caused by an accident" given the driver's conceded intentional act. The Appellate Division, Second Department ruled that the UM endorsement excluded coverage for the incident because the UM coverage was limited to circumstances where the insured was injured in an automobile accident at the hands of an financially irresponsible motorist. Since the adverse driver intended to kill Spicehandler, there was no "accident" and hence no UM coverage. Finding a distinction between the policy's UM and PIP endorsements, the First Department did not find such a limitation with regard to the death benefits claim. In contrast to its UM analysis, the court looked at whether the event was "accidental" from the standpoint of the insured in the PIP context. Since Spicehandler's death was unforseen from his standpoint, the event was "accidental" and State Farm's duty to provide death benfits triggered. The opinion was decided 3-2, which gives State Farm the right of appeal to New York's highest court. Stay tuned. State Farm Mut. Auto. Ins. Co. v Langan 2008 NY Slip Op 06980 Decided on September 16, 2008 Appellate Division, Second Department http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06980.htm Previous Next Contact

News Who Let the Dogs Out? Not the Defendants (NY) October 25, 2013 < Back Share to: Plaintiffs bitten by vicious dogs often sustain serious injuries. Therefore, it is no surprise that they can also look forward to a significant payday. But that does not mean that courts won’t put a leash on plaintiffs’ ability to obtain judgments against those with a remote connection to the dog in question. In Mercado v. Ovalle, the plaintiff was attacked by two pit bulls that were kept on a lot next to a grocery store. According to the plaintiff, the defendants, the grocery store and its owner, helped care for the pit bulls, occasionally gave them food, once took them for a walk, and had access to the lot where they were kept. The defendants moved for summary judgment, which the Bronx County Supreme Court granted. The First Department affirmed the decision, holding that a defendant could not be held liable for the plaintiff’s injuries in the absence of any evidence that the defendant owned or harbored the dogs, or controlled the lot where they were kept. However, the court also noted that there was no evidence that the pit bulls were ever in the store or that the defendants entered the adjacent lot, suggesting that the outcome may have been different had the defendants had more significant contacts with the pit bulls. The lesson from Mercado may be that it is fine to enjoy animals, just don’t assume any responsibility for them. Thanks to Mike Gauvin for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact

News School District Fails to Slip Away from Liability for Plaintiff's Fall (NY) November 27, 2019 < Back Share to: In Williams v. Island Trees Union Free Sch. Dist., a New York court addresses the level of evidence required for a defendant to claim it lacked constructive notice of a dangerous condition. In Williams, the plaintiff allegedly slipped and fell on clear liquid in the south cafeteria of Island Trees High School, which was under the control of the Island Trees Union Free School District. According to plaintiff, the accident occurred when she was walking in the cafeteria toward an "Aquafina" vending machine and both of her feet slipped out from underneath her. She then fell to the ground where she noticed a puddle of water which was approximately two inches wide and three to four feet long trailing from her spot on the ground to the vending machine. Plaintiff commenced an action to recover damages for personal injuries against the School District and Dover Gourmet Corp., the company with which the School District allegedly contracted with to stock the vending machine. Plaintiff alleged the School District was negligent in, among other things, maintaining the premises. The School District subsequently moved for summary judgment dismissing the complaint asserted against it. The New York Supreme Court granted the School District's motion. In response, plaintiff appealed. The New York Appellate Division, Second Department determined that the School District had failed to demonstrate, on a prima facie level, that it did not have constructive notice of the alleged water condition that caused plaintiff to fall. The court reiterated that "to meet its initial burden on the issue of lack of constructive notice, the defendant must offer evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell." In this case, the Court found that the School District failed to provide evidence regarding any specific cleaning or inspection of the area in question relative to the time when plaintiff's accident occurred. Accordingly, the Court reversed the lower court’s order. This decision serves as an important reminder that it is crucial for a moving party to adequately demonstrate that it lacked constructive notice of a condition that allegedly caused a plaintiff's accident when making a motion for summary judgment. Thank you to Caitlin Larke for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News New Jersey Clarifies Punitive Damages April 1, 2008 < Back Share to: In Tarr v. Bob Ciasulli's Mack Auto Mall, the New Jersey Supreme Court clarified two thorny issues surrounding the Punitive Damages Act. First, it held that a jury can only award punitive damages as a deterrent to the defendant who committed the wrongful acts but not as a general deterrent to others. Thus, the court held that it was error for the plaintiff's attorney to argue that the amount of punitive damages provided the jury "an opportunity to send a message to deter this particular defendant and others" whether they are in the same industry or not. The court also criticized the jury charge that erroneously reinforced the argument that the deterence of third parties who were strangers to the lawsuit could be considered. Second, the court found that the defendant's wealth at the time of the wrongdoing as well as at the time of entry of judgment could be considered when the jury calculated punitive damage. Our advice is simple: if a case proceeds to trial with a claim for punitive damages in play, defense counsel must be alert to any argument that seeks to "send a message" to an entire industry. The focus should be limited to the defendant sued in the case at hand. http://www.wcmlaw.com/articles/A-19-07l.pdf Previous Next Contact

News NJ App. Div Interprets &quot;Control Of Affliliate&quot; In Deemer Statute. August 30, 2010 < Back Share to: In Cupido v. Perez, the plaintiff was a resident of Pa. involved in a motor vehicle accident in NJ. Plaintiff selected the full tort option under his personal automobile insurance policy giving him the right to sue for any injuries sustained in a motor vehicle accident. Plaintiff's carrier, Nationwide, was not authorized to transact any motor vehicle insurance business in NJ; however, it controlled 4 affiliated companies which were authorized to transact commercial motor vehicle insurance but not private passenger insurance business in NJ. The issue on appeal was whether the NJ Deemer Statute , N.J.S.A. 17 :28-1.4 applied based on the control of an affiliate company authorized to transact commercial motor vehicle insurance business in NJ. The Appellate Division found that the Deemer Statute applied, and therefore that the plaintiff was subject to the NJ verbal threshold limitations on his right to sue for injuries. Please contact Robert Ball with any questions. http://www.judiciary.state.nj.us/opinions/a4557-08.pdf Previous Next Contact

News Clever Defense Strategy Leads to Victory for Motor Vehicle Insurer (NJ) March 12, 2020 < Back Share to: It is common practice for a defendant in a personal injury action to retain a doctor to conduct an independent medical exam (“IME”) of the plaintiff, with the intention of refuting the findings of the plaintiff’s medical expert. Often, but not always, the defense report is favorable and the IME doctor will be called by the defense to testify at trial. In Slomkowski v. New Jersey Manufacturers Insurance Company, the appellate division in New Jersey recently held that the defendant’s decision against calling its IME doctor as a trial witness did not take away from a fair trial for the plaintiffs. The plaintiffs' car was rear ended by a vehicle operated by an underinsured motorist. The plaintiffs sued New Jersey Manufacturers Insurance Co. seeking recovery for personal injuries. The expert hired by the defense determined that the injuries had been caused by the underinsured motorist and rendered a report to that effect, essentially agreeing with the plaintiffs' medical expert. Based on the opinion, the defense decided not to call the IME doctor to testify at the trial. Prior to trial, the defense filed a carefully crafted motion to preclude the plaintiff’s counsel from advising the jury during summation that the defense doctor had been retained by the defendant. Defense counsel did not seek to bar the jury being informed that the defense did not put forth an expert to rebut the plaintiff’s medical expert, nor did the defense object to the plaintiff calling the the defense doctor during their case in chief. The motion was granted and the jury rendered a no cause verdict in the defendant’s favor. On appeal, the court evaluated “whether failure to call a witness raises an unfavorable inference and whether any reference in the summation or a charge [to the jury] is warranted.” In affirming the trial court’s ruling prohibiting the plaintiff’s counsel from advising the jury that an expert was retained by the defense, the court noted that attorneys are given “broad latitude in summation.” However, as the court highlighted, the latitude is not limitless and must be based on facts within the record, which in this case, did not include the defense doctor's testimony. The court further determined that in order to support the plaintiff’s desired inference that the defense was attempting to conceal the opinion (which concurred with the plaintiff’s doctor), the defense would have had to have been in exclusive control of the doctor. Here, the defense was not in exclusive control as it did not call the expert as a defense witness and did not seek to preclude plaintiffs' counsel from doing so.. The court highlighted the fact that the plaintiff was free to subpoena the defense expert's testimony, but did not. In affirming the trial court’s decision, the appellate court determined that the trial court did not abuse its discretion in preventing the plaintiffs' counsel from suggesting to the jury that the defense “had chosen to withhold unfavorable evidence from them,” particularly where the plaintiff had every opportunity to obtain the desired testimony. The strategy does not end with a bad report. Experienced litigators can find a way. Thanks to Emily Kidder for her contribution to this post. If you have any questions or comments, please contact Vincent Terrasi. Previous Next Contact

News Jurisdictional Discovery Has Limits March 6, 2024 < Back Share to: Earlier this week, the Superior Court of New Jersey’s Appellate Division resolved a jurisdictional discovery dispute in a products liability action involving an alleged vape explosion. Plaintiff Ian Crespi (“Crespi”) claims that in 2016 he was injured when his vape exploded. After filing suit against several defendants Crespi filed a Third Amended Complaint against LG Chem, a South Korean company that designs, manufactures and sells an 18650 lithium-ion battery. Following a round of motion practice that included an appeal to the Superior Court, the parties were instructed to conduct jurisdictional discovery, as LG Chem argued the trial court lacked specific personal jurisdiction. Crespi issued 101 interrogatories to LG Chem, which led to further motion practice. Eventually, the Superior Court was asked to determine whether Crespi was entitled to answers or supplemental answers to 22 interrogatories. Citing U.S. Supreme Court precedent, the Court noted that placing a product into the stream of commerce, without more, does not amount to a purposeful act directed towards the forum state that would be sufficient to establish specific personal jurisdiction. Asahi Metal Indus. Co. v. Superior Ct. , 480 U.S. 102, 112 (1987). To that end, jurisdictional discovery should be limited. And where the issue is whether the court has specific personal jurisdiction, such discovery should be limited to “developing facts showing whether defendant engaged in purposeful conduct in New Jersey related to plaintiff's claims.” This is distinguished from the broad focus of merits discovery. The Court found Crespi’s jurisdictional theory as overly broad and indicated it must be tailored. To that end, the Court found that only one of the 22 interrogatories was proper. This interrogatory asked LG Chem to list ways it “recycles, re-purposes, brands, names, uses, sells, ships, and/or distributes [18650 batteries] that do not satisfy [its] requirements for the rechargeable lithium[-]ion battery to be supplied to the [c]onsumer by LG Chem.” (Emphasis omitted). Crespi v. Zeppy, et al. , No. A-2881-22, 2024 WL 1295798, at *3 (N.J. Super. Ct. App. Div. Mar. 27, 2024). Crespi had requested a follow up answer to LG Chem’s response, which the Court found was proper. 18 of the remaining 21 interrogatories concerned details of battery production “from start to finish,” which the Court stated had nothing to do with jurisdictional discovery. The Court also found that Crespi was not entitled to supplemental answers on two interrogatories concerning the sale or advertisement of products in New Jersey between 2011 and 2016, nor was he entitled to an answer as to what steps LG Chem took to ensure other entitled did not distribute or sell its 18650 batteries in New Jersey. As for these last three interrogatories, the Court found LG’s answers and objection satisfied the scope of jurisdictional discovery. This case serves as a helpful reminder that while discovery is a broad concept generally, parties must be mindful that jurisdictional discovery is limited and should not be used as a “fishing expedition” or as an extension of merit discovery. IAN CRESPI v. VAPE ZEPPY MICHAEL EILYUK EDWARD VINOKUR SOCIALITE E-CIGS LLC .pdf Download PDF • 152KB Previous Next Brian T. Noel Brian T. Noel Partner +1 267 331 3891 bnoel@wcmlaw.com Contact

News WCM Obtains Dismissal of NJ Products Liability Lawsuit. July 17, 2020 < Back Share to: Partner Bob Cosgrove and Counsel Matt Care successfully obtained a with prejudice dismissal of a products liability lawsuit in federal court in Newark, New Jersey. In the case of Elizabeth Kean, et al. v. Cedar Works, et al., the plaintiff alleged that, when she was a child, she fell from a defective swing set in her backyard onto her head. She claimed that the fall caused a traumatic brain injury -- specifically trauma-induced postural orthostatic tachycardia syndrome ( “POTS ”). While designed by our client, the swing set was installed, uninstalled, moved, and eventually reinstalled by an unknown party that was not joined to the case. At the close of pleadings, we moved to dismiss the case and argued that the unknown installer, mover, and reinstaller was a necessary and indispensable parties to the litigation, without which full and complete justice could not be rendered. We also moved to dismiss the case on the grounds that complaint was insufficiently specific. The Court granted our motion on both grounds and dismissed all claims against our client. For more information about this victory, please contact rcosgrove@wcmlaw.com .   Previous Next Contact

News Pennsylvania Court Allows For Partial Bifurcation of Bad Faith Claims March 22, 2018 < Back Share to: In Fertig v. Kelley, et al., the plaintiff was injured in a motor vehicle accident. The plaintiff sued the driver of the other car, and her insurance company. The plaintiff claimed that the insurer failed to pay underinsured motorist benefits under her policy. As such, she asserted claims for breach of contract, and statutory bad faith. The insurer moved to bifurcate or sever the bad faith claim, and stay discovery of the bad faith claim until the UIM claim was tried. The Pennsylvania Court of Common Pleas noted that no appellate court in Pennsylvania “has addressed the severance of a UIM claim and a statutory bad faith claim or the stay of bad faith discovery and proceedings pending the resolution of the UIM claim.” With regard to the plaintiff’s liability claims (against the driver) and UIM claim (a/k/a breach of contract claim against the insurer), the court concluded that since those claims raised similar questions of fact and law, they should be joined for trial purposes. Conversely, the court determined, that if the plaintiff’s claim for bad faith was tried with her liability and UIM claims, it could result in unfair prejudice to the insurer. Therefore, the bad faith claim was bifurcated and to be tried after the liability and UIM claims. However, given the similar issues raised in all claims, the court held that all claims should remain consolidated for discovery. Often times a plaintiff will commence an action asserting claims against both the tortfeasor, and an insurance company. Typically, when bad faith claims are involved, a motion to bifurcate is filed, to ensure that the insurance company is not prejudiced by that claim at trial. This case provides guidance on how Pennsylvania courts faced with similar motions will rule, allowing insurers to know how to best defend themselves against bad faith claims. Thanks to Colleen Hayes for her contribution to this post.       Previous Next Contact

News NY’s “Pothole Law,” Prior Written Notice Statutes, and the Affirmative Negligence Exception (NY) December 23, 2020 < Back Share to: In Martin v. City of New York, No. 12318, 2020 WL 7347089 (1st Dep’t, Dec. 15, 2020), the Appellate Division, First Department clarified a municipality’s liability exposure, pursuant to a prior written notice statute and the affirmative negligence exception. In Martin, Plaintiff alleged he sustained personal injuries when falling on a roadway in the Bronx. Defendant owned and maintained the accident location. Defendant moved for summary judgment, which was granted, because Plaintiff failed to provide Defendant with prior written notice of the alleged roadway defect, as required under the “Pothole Law.” See Administrative Code of City of NY § 7-201 (c)(2). On appeal, Plaintiff argued notice was not required under the Pothole Law when the alleged tortfeasor created the roadway defect through an affirmative act of negligence, i.e., poorly conducted repair work. The First Department agreed with Plaintiff and reversed the trial court’s summary judgment order, for the reasons articulated below. Generally, a municipality that has enacted a prior written notice statute may not be subject to liability for personal injuries caused by a defective street or sidewalk condition, absent proof of prior written notice or an exception thereto. Martin, at *1. The Court of Appeals has recognized two exceptions to this rule, namely, where the locality created the defect or hazard through an affirmative act of negligence [and] where a “special use” confers a special benefit upon the locality. Katasoudas v. City of New York, 29 A.D.3d 740, 741 (2d Dep’t 2006) (additional citations omitted). In Martin, the “affirmative creation exception” was at issue. This exception is “limited to work by the City that immediately results in the existence of a dangerous condition.” Yarborough v. City of New York, 10 N.Y.3d 726, 728 (2008) (internal quotation marks and additional citations omitted). The exception does not apply in circumstances where a dangerous condition eventually emerges, due to erosion/gradual wear and tear. In Martin, however, the First Department noted the trial court erred by ignoring deposition testimony demonstrating Defendant attempted to repair the subject road approximately one month before the accident occurred. Thus, questions of fact existed as to whether Defendant’s affirmative repair of the road negligently created a defective condition. The takeaway for defense counsel is that they should be aware of the evidentiary burden required to prevail on summary judgment when plaintiffs proffer testimony supporting the affirmative negligence exception of a prior written notice statute. Rebutting such a proffer would require countervailing evidence that plaintiff’s testimony is either entirely unsubstantiated or the dangerous condition developed over time. Thanks to John Amato for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact