Wade Clark Mulcahy LLP

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

News The Inherent Hazards Of Sanitation Work Preclude Action When Worker Killed By Hit-And-Run Driver July 18, 2008 < Back Share to: In Consalvo v. City of New York et al, a hit-and-run driver struck and killed a sanitation worker who was removing a dead cat from a roadway. In this wrongful death action, the plaintiffs asserted that the defendants were negligent in failing to dispatch two sanitation workers at the time of this accident. The defendants moved for summary judgment arguing that they breached no duty owed to the decedent. The trial court denied the defendants' motion. In reversing the trial court and dismissing the plaintiffs' case, the Appellate Division, Second Department held that "the duty of an employer to provide its employees with a safe place to work does not extend to hazards which are part of or inherent in the very work which the employee is to perform nor to secure the safety of an employee against the condition, or even defects, risks or dangers that may be readily observed by the reasonable use of the senses, having in view the age, intelligence and experience of the employee." Here, with ten years on the job, this decedent's work included picking up dead animals from the roadway and the risk of being struck by a car was readily observable. Moreover, plaintiffs failed to produce any evidence that the defendants were required to assign more than one worker to retrieve a dead cat. http://www.nycourts.gov/reporter/3dseries/2008/2008_06186.htm Previous Next Contact

News Hungary Holocaust Art Claim Allowed to Proceed. September 7, 2011 < Back Share to: In what some experts are calling the largest unresolved Holocaust art claim, heirs of Baron Mor Lipot Herzog -- a well-known Jewish Hungarian art collector -- have commenced an action in federal court (District of Columbia) against the Republic of Hungary and various Hungarian museums seeking the return of over $100 million worth of art that they allege is rightfully theirs -- Complaint. The artworks -- which include a number of works by El Greco, Velázquez, Renoir and Monet -- were seized in the 1940’s by the Hungarian government which was an ally of Nazi Germany. In de Csepel v. Republic Of Hungary, the heirs allege that the infamous Adolf Eichmann inspected the art collection in Hungary and had some works shipped to Germany and allowed the rest to remain in Hungary. The suit raises a number of interesting legal issues regarding Hungary’s sovereign immunity and the relevance of a Hungarian court’s ruling that the heirs were not entitled to the artworks. An interesting allegation is that Hungary is pursuing other parties for the return of Nazi art - yet refuses to return this art to the heirs. We will continue to follow this interesting case. Thanks to Mendel Simon for his contribution to this post. If you would like more information, please contact Mike Bono at mbono@wcmlaw.com Previous Next Contact

News Soccer Game Spectator's Recovery Barred By Assumption of Risk July 6, 2009 < Back Share to: The plaintiff, a spectator at a soccer game, brought suit against Nassau County and a soccer league for injuries she sustained when a soccer player kicked her as she watched a game. The plaintiff was standing roughly three feet from the out of bounds line. The league provided bleachers for spectators and had security guards on hand enforcing the league policy barring spectators from standing on the sidelines. The court granted the defendants' motion for summary judgment because the plaintiff chose to stand near the sidelines even though she witnessed players chase the ball after it went of bounds on at least three times prior to her accident. The court held that the plaintiff placed herself in close proximity to the field of play despite observing the precise risks that caused her accident and despite the fact that the league provided her with a safe alternative place to watch the game. Therefore, applying the doctrine of assumption of the risk, the plaintiff's recovery is barred. Thanks to Maju Varghese for his contribution to this post. Previous Next Contact

News Sole Proprietorship Companies: The Blurred Lines between Business Entity and Owner (NJ) September 20, 2018 < Back Share to: Plaintiff Cesar Asijtuj-Jutzuy is a former construction worker and employee of Bossolina Construction, Inc., appealing from a summary judgment dismissal of his personal injury action alleging injuries he sustained when he fell eleven feet from a scaffolding plank. In Asijtuj-jutzuy v. Werner Co., plaintiff sued Sikorski Construction, alleging that it was responsible for oversight of the entire project and that it breached its duty to plaintiff by failing to provide a reasonably safe place to work. Although plaintiff also brought product liability claims against the manufacturer, this article will focus on the negligence claims against Sikorski Construction. The underlying facts pertaining to the accident were undisputed: plaintiff was standing on an aluminum work platform which was positioned at a height of approximately eleven to twelve feet. Plaintiff was in the process of removing stucco with a power grinder, when the grinder suddenly jammed and kicked plaintiff back off the platform causing him to fall and strike his head on the cement pavement below. There was a dispute whether Sikorski worked on the project as an individual. Sikorski testified that he did not, but the owner of Bossolina Construction testified that Sikorski obtained permits for the project. Further, plaintiff alleged that Sikorski was responsible for running the job and implementing safety measures. Sikorski testified that he had undergone a lumbar fusion the month before plaintiff’s accident and was still recovering during plaintiff’s accident. Sikorski testified that he was unable to participate in the project in any capacity. The trial court had granted summary judgment to Sikorski Construction on the ground that there was no evidence of it having a contract with respect to this project and the lack of evidence that Sikorski was on the project site. In doing so, the trial court noted that Sikorski had not been named as an individual defendant. The appellate court found that Bossolina did not distinguish between himself as an individual and Bossolina Construction. Sikorski, much in the same way, did not distinguish between himself and his company when providing testimony. For example, when Bossolina testified he subcontracted the job to Sikorski, he did not, individually, have a job to subcontract out. Thus, when he testified he subcontracted the project to Sikorski, he likely meant Bossolina Construction subcontracted the job, and he may have meant – and a jury could have reasonably inferred – Bossolina Construction subcontracted the project to Sikorski Construction. As such, even if Sikorski himself was not physically at the project site, there was a question as to whether Sikorski Construction had agreements and duties arising from the agreements. Citing the Burwell v. Hobby Lobby Stores case, in a sole proprietorship, the business and its owner are one and the same. Thus, Sikorski could not avoid liability by using a name for his business when his business was a sole proprietorship. The appellate court held that the trial court should have permitted plaintiff to amend his pleadings to name Sikorski as an individual defendant or in the alternative, should have amended the pleadings itself. The appellate court reversed and remanded the matter for trial, holding that Sikorski and Sikorski Construction were indistinguishable as legal entities. As such, the question of Sikorski’s involvement with the project was a question of fact that should have been determined by the jury. Thanks to Steve Kim for his contribution to this post. Please contact Brian Gibbons by email or on Twitter (@bgibbons35) with any questions. Previous Next Contact

News Plaintiff Fouled By Dust On Basketball Court (NY) July 19, 2019 < Back Share to: In Samuels v. Town Sports International LLC, plaintiff brought suit when he slipped and fell on the sideline of a basketball court on what he believed was dust coming from an above HVAC unit. Defendant moved for summary judgment on the theory of no notice and assumption of risk. The lower court granted summary judgment on defendant’s assumption of the risk argument. The lower court held “those who seek to recover for injuries sustained while engaged in sporting events, must overcome the assumption of risk doctrine. Thus, one who engages in a sport or recreational activity consents to those risks which are inherent in the activity.” Plaintiff’s mere participation in a basketball game denotes acceptance of the risk of injury. Moreover, he complained of conditions of which he was aware because he was a fairly frequent player on defendant’s basketball court, and had previously noticed the dust and the slipperiness on the court. Accordingly, the lower court found that the plaintiff assumed the risk associated with playing on a basketball court in such condition. Plaintiff appealed. The Appellate Division, First Department reversed the lower court decision. While the Appellate Division acknowledge the assumption of risk defense, they held the lower court erred in granting defendant summary judgment as defendant failed to make a prima facie case on its affirmative defense of primary assumption of the risk. The doctrine limits the scope of the defendant’s duty of care but it does not exculpate a landowner from liability for ordinary negligence in maintaining its premises. The Appellate Division found that the defendant failed to properly maintain the court and that dust was not an open and obvious condition or inherent in the sport of basketball. The Appellate Division likened dust on the basketball court to a tennis player that trips on a torn net; not a risk inherent in the sport of tennis so as to relieve a premises owner of liability, as a matter of law. Thanks to Paul Vitale for his contribution to this post. Please contact Georgia Coats with any questions. Previous Next Contact

News NJ Supreme Court Clarifies Public Entity Immunity Standard February 4, 2009 < Back Share to: In its recent decision in Ogborne v. Mercer Cemetery Crop., 2009 WL 196047 (2009), the New Jersey Supreme Court concluded that when the facts are reasonably debatable as to whether the employee’s actions or the condition of the property caused plaintiff’s accident, then the more stringent “palpably unreasonable” standard applies. Pursuant to the New Jersey Tort Claims Act, plaintiffs suing a public entity for a dangerous condition on its property must prove that the entity acted “palpably unreasonably” in not protecting against the dangerous property condition. By contrast, when a public employee’s actions cause plaintiff’s injury, the plaintiff need only prove ordinary negligence. In Ogborne, the plaintiff was accidentally locked inside a cemetery when a cemetery employee closed the entrance gates early. Thus, she was forced to climb a brick wall in order to exit, fracturing her tibia in the process. In keeping with the broad immunity provided in the Tort Claims Act, the Supreme Court determined that the higher “palpably unreasonable” standard should apply in determining the public entity’s liability. Thanks to Claudi Condruz for her contribution to this post. http://www.judiciary.state.nj.us/opinions/supreme/Supreme%2008.pdf Previous Next Contact

News A New York Lloyd's? July 8, 2008 < Back Share to: Details are sketchy and many issues must still be worked out, but the recreation of the New York Insurance Exchange is in the works. If all goes according to plan, the Exchange will re-open in the next 18 months. The question is -- will pubs and coffee houses follow? http://www.insurancejournal.com/news/national/2008/07/08/91689.htm?print=1 Previous Next Contact

News It’s Not Your Fault! Insured’s Failure to Comply with Policy Terms Does Not Support Malpractice Action Against Broker (NJ) June 13, 2019 < Back Share to: In Old Republic Ins Co v. Eastern King Air Serv LLC, the District of New Jersey recently granted a motion to dismiss filed by an insurance broker-defendant finding that the plaintiff-insured could not adequately allege any claims for broker malpractice or negligence where the policy procured was not itself void or materially deficient. Specifically, Old Republic, the insurer, disclaimed coverage to its insured, Eastern King, for an airplane accident, because Eastern King’s pilots were not in compliance with flight training requirements written into the policy of insurance. Eastern King therefore brought an action against its broker for failure to obtain adequate insurance following the disclaimer. The Court agreed with the broker, who argued that the insured’s failure to comply with all policy terms was the cause of the coverage denial, and that this failure was directly tied to the insured’s failure to read its own policy. Specifically, the Court articulated that a broker owes the insured absolutely no post-procurement duty, and therefore Eastern King’s claim for malpractice was deficient as a matter of law, warranting dismissal. This decision is a reminder to insureds to properly assert broker malpractice claims, setting forth and demonstrating that the policy provided is materially deficient, and deviates from the coverage the broker undertook to supply in the first instance. Thank you to Vivian Turetsky for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Passageway to Port O Potty Protected Under New York Labor Law (NY) March 25, 2013 < Back Share to: In Alfano v. LC Main, LLC, plaintiff slipped and fell on ice in front of an outdoor portable toilet while working at a construction site. Plaintiff alleged violations of New York Labor Law §§ 200, 240 and 241(6), predicated on 12 NYCRR §23-1.7(d). Since all parties agreed that the area where plaintiff fell was on ground level, the court dismissed the Labor Law § 240 cause of action (“fall from height”). The court would not dismiss the Labor Law §241(6) cause of action because though the portable toilet was in a common area of construction, to access it, the workers had to walk through a path of fenced in materials demarcated on one side by dumpsters and on the other side by stockpiles of construction materials. As such, to get to the portable toilets, plaintiff had to walk through a “passageway or walkway” as contemplated by 12 NYCRR §23-1.7(d). Labor Law cases are extremely fact specific. If there is any remote possibility that an action can fit into a Labor Law category, courts will typically find a way to do so. As such, it is important to analyze labor law applicability--or lack thereof--early on, to appropriately defend your case. For more information about this post, contact cfuchs@wcmlaw.com . Previous Next Contact

News Defendants Not Liable For Injuries Caused By Uneven Sidewalk July 18, 2012 < Back Share to: In the recent unreported decision of Maloy v. Schneider, the plaintiff mail carrier brought suit after he tripped on a raised slab of public sidewalk in front of the defendants’ house. Plaintiff argued that the sidewalk’s uneven condition had been produced by roots growing from a tree located in defendants’ yard. It was undisputed that the defendants did not plant the tree in question. Additionally, the defendants denied being aware that the sidewalk was in a dangerous condition prior to plaintiff’s fall. The defendants moved for summary judgment arguing that, as residential landowners, they were not liable for the public sidewalk’s uneven condition, even if the condition was caused by roots emanating from a tree in their front yard. The trial court agreed, and dismissed plaintiff’s complaint, noting that the defendants had not planted the tree, nor had they undertaken any other conduct to produce the dangerous condition. The Appellate Court upheld the trial court’s decision, noting that, for decades, the New Jersey Supreme Court has declined to impose a common-law duty upon residential property owners to generally maintain the public sidewalks in front of their home in a safe condition. Although an exception may apply if the defendants cause the hazardous condition, in this particular case, there was no proof of any affirmative actions on the part of the defendants to create a hazard condition on the abutting sidewalk. Thanks to Heather Aquino for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a4103-10.pdf Previous Next Contact

News PA Superior Court Finds That Employer Is Liable For Contribution Despite Not Being At Fault For Plaintiffs’ Injuries August 26, 2021 < Back Share to: In McLaughlin v. Nahata, et al., the Pennsylvania Superior Court found a hospital could seek indemnity or contribution toward a $17 million verdict rendered against it, from the employer of the doctors found liable for malpractice. Plaintiffs Alyssa McLaughlin and William McLaughlin sued two doctors over injuries Alyssa received while treating at The Washington Hospital (“TWH”). Plaintiffs also named TWH as a defendant. TWH joined The Dialysis Clinic, the doctors’ employer. Although the doctors performed the treatment that allegedly caused the injuries at TWH, the trial court found that The Dialysis Clinic was the doctors’ employer. Eventually, the doctors settled with the plaintiffs and TWH’s claims for contribution from The Dialysis Clinic were severed into a separate trial. The Dialysis Clinic claimed that it could not be held liable because it did not contribute to the injuries. The Superior Court disagreed. The court reasoned that the Pennsylvania Joint TortFeasors Act “does not limit the right of contribution to tortfeasors who have been guilty of negligence. Contribution is available whenever two [or] more persons are jointly or severally liable in tort, irrespective of the theory by which tort liability is imposed.” Although the theory of liability against The Dialysis Clinic was only through vicarious liability, the court reasoned that contribution was still available. Ultimately, the Superior Court remanded the case to the trial court because it found that the amount of liability to be apportioned to The Dialysis Clinic was a jury issue. Thanks to John Lang for his contribution to this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact