News Expert Testimony Allowed In Motorcycle Collision Case (NJ) February 26, 2013 < Back Share to: An expert's bare opinion that has no support in factual evidence or similar data is a mere net opinion that New Jersey courts have held to be inadmissible and not for the jury's consideration. In a recent decision in Townsend v. Pierre, et al., the appellate court addressed whether the trial court correctly deemed the opinions of the plaintiff's liability expert as being net opinions when it decided to bar that expert from testifying at trial. The Townsend case involved a tragic collision between a motorcycle and a car at the intersection of Garfield Drive and Levitt Parkway. This intersection was controlled by a stop sign, but the plaintiffs alleged that the adjacent property had overgrown bushes that obstructed Pierre's vision whose intention it was to make a left turn onto Levitt Parkway. At her deposition, Pierre testified that when she initially stopped at the stop sign, the bushes obstructed her vision. She then started inching up, stopping four times. Once she had a clear view, she looked to her left, saw nothing and then started to turn. At this point, the accident occurred. Pierre's front seat passenger acknowledged that Pierre did look to her left before turning and this prompted the passenger to do the same, but she denied any obstruction of her view. The plaintiffs' engineering liability expert opined that the bushes were negligently maintained and violated various standards and ordinances pertaining to height restrictions. The expert determined that the stop sign’s location and the overgrowth of the bushes proximately caused the accident. The property owners moved to bar the plaintiffs’ expert from testifying, arguing that his opinions lacked any factual basis since Pierre testified that her vision was not obstructed by the bushes at the time of impact. The trial court granted the motion and held that the overgrown bushes were not a proximate cause of the accident. The Appellate Court reversed and held that whether Pierre had an unobstructed view is a credibility-based question of fact for the jury. The appellate court further noted that the plaintiff's expert's opinion was also based on specifications in various ordinances, as well as measurements taken of the intersection. While the court agreed that the unconditional admission of the expert's opinion on causation would have been inappropriate, it noted that the expert could be presented with hypothetical questions at trial, coupled with a corresponding limiting instruction that would allow his opinion to be considered by the jury. Special thanks to Heather Aquino for her contribution to this post. For more information, please contact Nicole Brown at nbrown@wcmlaw.com . Previous Next Contact

News WCM Wins Dismissal Involving Overseas Trip Sponsored By Charitable/Religious Organization (NY) June 5, 2017 < Back Share to: Senior Partner Paul Clark and Associate Peter Luccarelli III successfully convinced the Appellate Division, First Department to reverse a New York County trial court’s decision denying our client’s motion for summary judgment in an alleged sexual assault case. Lerner involved a claim of a 19 year old participant in an overseas trip by our client, a charitable and religious organization. At the end of the day’s sponsored activities, plaintiff and several other trip participants, all of whom were of legal drinking age, retired to the hotel bar. At the hotel bar, plaintiff met, and later left with other male hotel guests who were not members of the trip. Hotel personnel later found plaintiff disoriented in a hallway, and the investigating officers determined that she may have been sexually assaulted and possibly drugged by her assailants. Plaintiff filed suit against our client for allegedly failing to properly supervise her and prevent her assault at the Hotel after all sponsored activities were over. We moved for summary judgment on the basis that there was no duty to supervise an adult who drank in a hotel bar not owned, maintained, or controlled by our client. We further argued that any duty of care owed by our client to plaintiff was severed by the acts of the criminal third-parties who were unknown to our client. The trial court initially denied our motion on the basis that our client failed to prevent plaintiff from drinking excessively. On appeal, the First Department unanimously reversed the trial court order and granted our motion for summary judgment. The First Department held that even assuming a duty to prevent an adult plaintiff from drinking excessively, there was nothing our client could have done to prevent plaintiff’s alleged assailants from perpetrating an unforeseeable—and unfortunate—criminal act against her. If you have any questions about this post, please email Paul at pclark@wcmlaw.com . Previous Next Contact

News This Means War! NJ Court Examines Whether Cyber Attack Is Excluded Under Policy November 10, 2022 < Back Share to: In January, 2022, in Merck v. ACE American Insurance Company, a New Jersey Superior Court Law Division Judge ruled that a cyberattack, for insurance coverage purposes, cannot simply be excluded based on a wartime exclusion. What does it mean for insurance companies? A cyberattack is an unfortunate side effect of the advances in technology and it is clear that this form of attack is not going away anytime soon. Some insurance policies have the longstanding wartime exclusion language that meant to apply to armed conflict but in this case, the court placed the burden on insurance companies to put its insured on notice that cyberattacks are not covered because of the wartime exclusion. If such notice is not sufficient, then insurance company cannot escape the coverage. The court emphasis the importance of phrasing the contract to properly reflect the reasonable expectations of the insured when facing ambiguous language in the policy. This decision can mean two things for insurance companies: 1) it's time to take a look at the policy and add in language to clarify the scope of wartime exclusion to put insured on notice, or 2) for non-cyber polices, it's time to add an ironclad cyber exclusion to limit exposure. Thanks to Yifan Li for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Unavoidable Accident or Negligence... Only the Jury Knows For Sure (NY) July 5, 2017 < Back Share to: A New York court recently fleshed out the concept of an unavoidable accident in a motor vehicle accident case in which the plaintiff sought summary judgment. The claim in Wood v. Deschamps arose out of a winter storm related motor vehicle accident. By all accounts, the plaintiff was entirely blameless in the accident. She had been proceeding at a reasonable speed, well below the posted limit, and within her lane of travel when the defendant’s vehicle fishtailed and entered her lane of travel. It had been snowing for some time with about 1.5" accumulation on the ground. The defendant had been traveling somewhat under the speed limit, in light of the weather conditions, but lost control of her vehicle as she rounded a bend. She agreed that the accident occurred quickly after she entered the plaintiff’s lane. The defense fought plaintiff's partial summary judgment motion on the issue of liability arguing that the emergency doctrine or unavoidable accident theory applied. The Court declined to extend the "emergency doctrine" to this situation finding that there had not been a sudden and unexpected event. Although the accident was certainly sudden, the factors leading up to it were not. The defendant admittedly knew that it was snowing and that the roads were slick as she continued on her journey. However, the Court found that a jury could conclude that the collision was an unavoidable accident if neither party was negligent. In this case, the plaintiff was clearly free from fault as she drove at a reasonable speed and maintained control of her vehicle when she was struck by a vehicle that fishtailed into her path of travel. Similarly, the Court found that a jury could find the defendant blameless if they believed that she was traveling in a reasonable and prudent manner given the weather conditions and that her loss of control was beyond her control. Thanks to Christopher Gioia for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Does An Email Exchange Constitute Enforceable Settlement Agreement? (PA) November 29, 2018 < Back Share to: In Hatchigan v. Kaplin, the Pennsylvania Court of Common Pleas analyzed whether an email exchange resulted in an enforceable settlement agreement. In brief, the plaintiff filed a lawsuit. Subsequently, following an exchange of telephone conversations, defense counsel sent an email to the plaintiff offering a settlement amount and also sought a general release and dismissal of the plaintiff’s lawsuit. Plaintiff’s counsel responded to the email stating “Agreed and accepted. Plaintiff will end, discontinue, settle accordingly to the defendants’ conditions …”. In response to the plaintiff’s email, defense counsel drafted a release, noting that the settlement was based on the prior exchange of emails, which the plaintiff signed. Upon receipt of the signed release, defense counsel requested that plaintiff have his signature notarized. At which time, the plaintiff advised he no longer agreed to the settlement. The defendants moved to enforce the settlement. Ultimately, the court found the agreement to be enforceable. The court reasoned that in their emails the parties agreed on the essential terms of the settlement, which formed a valid and enforceable contract. Accordingly, this case reveals that Pennsylvania courts may look to the communications between parties to determine if an enforceable settlement has been reached. Thanks to Collen Hayes for her contribution to this post.   Previous Next Contact

News Weddings: Falling in Love and Falling Under the Labor Law (NY) September 20, 2012 < Back Share to: While many people have been known to fall in love at weddings, some just fall, and now the owner of the wedding facility may be on the hook. New York’s Appellate Division recently held that a wedding chupah (canopy) can qualify as a “structure” under New York State Labor Law. In McCoy v. Abigail Kirsch at Tappan Hill, Inc., the defendants hosted a wedding ceremony at its facility, which included use of a chupah. A chupah is a canopy under which a bride and groom are married as part of Jewish wedding tradition. The chupah was 10-feet high, and made of pipe and wood. The defendant provided the plaintiff, a truck driver for a florist, with a six-foot high aluminum ladder, which he used to try and disassemble the chupah. While plaintiff was standing on the ladder, which was being held by another employee, the ladder slipped and plaintiff fell. The plaintiff brought an action for violations of the Labor Law. New York’s Labor Law requires that all owners and general contractures provide safety devices to protect their employees from the inherent risks of working at elevated heights. The statute expressly provides that safety devices are necessary “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” Labor Law § 240(1). The court noted that whether something is a “structure” depends on the specific facts of the case, and requires a balancing of numerous factors. The court found a number of facts relevant to finding that the chupah was a “structure,” including that the chupah “consisted of various interconnected pipes... secured to steel metal bases.… “ The court also found it significant that the assembly and disassembly of the chupah required a ladder, tools and “an experienced worker more than a few minutes to complete.” Finally, the court stressed that its decision should not be interpreted as a finding that every chupah is a “structure” under the Labor Law. Thanks to Steve Kaye for his contribution to this post. If you would like more information please write to mbono@wcmlaw.com     Previous Next Contact

News Can a Resident of a Homeowners’ Association Be Deemed an Invitee in the Common Areas of Their Own Community? (PA) September 14, 2018 < Back Share to: In Hackett v. Indian King Residents Association, the plaintiff, a resident of the defendant homeowners’ association, brought suit to recover for injuries she sustained after she fell on a common area leading to her town home in a residential community managed by the defendant. The residential community in which she lived is a mixed town home/single family residence community in West Chester, Pennsylvania. The plaintiff claimed that she could not see branches in the dark as she climbed the steps that evening. After two days of trial, the jury found that the defendant homeowners’ association was not negligent. On appeal, the plaintiff argued that the trial court erred by charging the jury that the plaintiff was a licensee rather than an invitee. Particularly, she argued that by paying maintenance fees, she became an invitee, and that the defendant’s business is that of property manager and thus it is responsible for keeping common areas safely maintained. Pursuant to the declaration of the homeowners’ association, the plaintiff used the common areas with the defendant’s permission. The duty of the defendant to a licensee versus that of an invitee is different; the duty to an invitee is more stringent. The Court reviewed the definition of licensee, and also looked to the facts, determining that the plaintiff was a resident of the community, she used the common area with the defendant’s permission, not by invitation, and the declaration granted residents an easement of enjoyment regarding common areas. The Court found that this essentially conferred permission to each resident to use the common areas. The Superior Court found that the trial court properly instructed the jury that the plaintiff was a licensee, as there was no evidence offered that the plaintiff entered the property upon invitation or for a purpose for which land is held open to the public. The court noted that the distinction between invitation and permission forms the basis for distinguishing an invitee from a licensee. Thus, the trial court’s conclusion that the plaintiff was a licensee was affirmed on appeal. Thanks to Alexandra M. Perry for her contribution to this post. Previous Next Contact

News Second Circuit Rejects Ambiguity Argument Regarding Policy’s Action Over Exclusion (NY) January 25, 2019 < Back Share to: An additional insured attempted to argue the “separation of insureds” clause rendered the Action Over Exclusion, an iteration of an employer’s liability exclusion, inapplicable, as it was not the employer of the claimant. The Second Circuit disagreed based on the plain language of the exclusion. In Endurance American Specialty Insurance Co. v. Century Surety Co., Hayden Building Maintenance Corp. was the general contractor on a construction project at which the plaintiff, who was an employee of Pinnacle Constr. and Renovation Corp., was injured. Hayden sought coverage as an additional insured under the CGL insurance policy issued to Pinnacle by Century Surety Co. Century denied coverage based on the policy’s Action Over Exclusion, which provided that there was no coverage for “bodily injury” to an “employee” of the named insured arising out of and in the course of employment by the named insured, or performing duties related to the conduct of the named insured’s business. Hayden challenged the disclaimer, arguing the exclusion did not apply because Hayden did not employ the plaintiff and the policy’s terms must be applied separately to each insured seeking coverage as per the policy’s Separation of Insureds provision. Although the district court agreed with Hayden, the Second Circuit reversed and held the Action Over Exclusion unambiguously barred coverage. In particular, the appellate court held the exclusion barred coverage for bodily injury claims brought by an employee of “the named insured,” as opposed to “the insured.” The Court further observed the Action Over Exclusion specifically replaced the Employer’s Liability Exclusion, which used the term “the insured.” The Second Circuit ultimately reversed “because to do otherwise would render the unambiguous language…a nullity.” Insurance policies are arguably the most hyper-scrutinized class of contracts. As a result, in evaluating coverage, it is critical to evaluate even the most minute distinction in policy terms. Here, an endorsement altered an exclusion by redefining the pertinent class of insured by changing “the insured” to “the named insured.” Thanks to Christopher Soverow for his contribution to this post. Please contact Colleen E. Hayes with any questions. Previous Next Contact

News Landlord's Duty Arises From Ability And Opportunity To Control Conduct April 28, 2012 < Back Share to: In Banner vs. New York City Housing Authority, the infant plaintiff was injured when, while sitting on his bicycle in the courtyard at the rear of the defendant's building, he was hit in the eye by a bottle that was allegedly thrown from the roof of the building. The plaintiffs allege that NYCHA was negligent in failing to secure the roof and in allowing persons to use it in a dangerous and defective manner. The court noted that "a landowner has a duty to exercise reasonable care in maintaining his own property in a reasonably safe condition under the circumstances." This duty includes an obligation "to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person. However, this duty only arises when there is an ability and opportunity to control such conduct, and an awareness of the need to do so." The defendant submitted affidavits from its supervisor of caretakers and a professional engineer establishing that the defendant was required to keep the door to the roof unlocked for fire safety purposes. The testimony of the infant plaintiff established that neither he nor his friends actually saw a person on the roof throw a bottle, and that the alleged perpetrator was unknown, making it possible that the perpetrator was a resident of the building who would have had access to the roof despite any amount of security provided. The plaintiffs failed to raise a triable issue of fact that the defendants had the ability and opportunity to control the conduct through the exercise of reasonable measures, and that the failure to have done so was a proximate cause of the injuries alleged. As such, summary judgment was granted to the defendant. Thanks to Sandy Debbas for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03269.htm Previous Next Contact

News No Foul: Plaintiff Assumed the Risk of Playing Basketball (NY) December 7, 2017 < Back Share to: In Hanson v. Sewanhaka, et. al, the plaintiff allegedly was injured during a basketball game in a gym class at Elmont Memorial High School when he was kicked in the leg by another student, the defendant Malik Freeman. The plaintiff sued the other student and the Sewanhaka Central High School District. Both defendants moved for summary judgment and the Supreme Court granted both motions. On appeal, the defendants cited to the doctrine of assumption of risk, which holds that when a person consents to the commonly associated risks inherent in the sport and freely assumes a known risk, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from the risk. Here, a leg injury caused by a collision between two players is certainly a commonly associated risk while playing basketball. In his brief, plaintiff alleged that Freeman kicked plaintiff intentionally; however, in his complaint the plaintiff had not asserted a cause of action for an intentional tort, and neither the second amended complaint nor the bills of particulars alleged intentional conduct. The court held that a plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars. Therefore, since the defendants established prima facie proof that the plaintiff voluntarily engaged in the activity of basketball and was aware of the risks inherent in the activity, including the possibility of contact or collision with other participants, the Second Department did not find the plaintiff’s argument persuasive. The Second Department also held because the plaintiff testified he chose to play basketball from a number of options, the inherent compulsion doctrine was inapplicable. Voluntary participants in sporting or recreational activity consents to those commonly appreciated risks that are inherent in and arise out of nature of sport or activity generally and flow from such participation; however, the defense is not applicable if the participant is forced to compete or take part in the activity. Since, the plaintiff had options as to which sport to play, he was not forced to participate in this activity; therefore, the Second Department denied that argument and affirmed the Supreme Court’s decision granting summary judgment to both defendants. Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News WCM VOLUNTEERS IN PHILADELPHIA FOR ALEX’S LEMONADE STAND April 19, 2024 < Back Share to: On April 10, 2024, amidst the hustle and bustle of Philadelphia, WCM associate Ryan Hunsicker and WCM paralegal Anne Skiles joined with the Pennsylvania Defense Institute, the Philadelphia Association of Defense Counsel and Drexel University’s Thomas R. Kline School of Law, to host an Alex’s Lemonade Stand Foundation fundraiser. The fundraiser was held on Drexel’s campus next to the famous statue of Mario the Dragon at 33rd & Market Street. All in all, a lovely day, an excellent and worthy cause, and a good time was had by all. Previous Next Ryan Hunsicker Ryan Hunsicker Senior Associate +1 267 239 5526 rhunsicker@wcmlaw.com Contact

News Finding of "Alteration" and Notice Sufficient to Defeat Summary Judgment May 20, 2009 < Back Share to: In Fuchs v. Austin Mall Assoc. LLC, plaintiff's decedent was electrocuted while replacing the ceiling of an elevator located on property owned and/or managed by the defendants. The decedent's representative commenced an action against the defendants alleging common law negligence and causes of action pursuant to Labor Law sections 200, 240, and 241(6). The defendants then filed a motion for summary judgment in relation to plaintiff's claim for common-law negligence and for violations of Labor Law sections 241(6) and 200. The Supreme Court, Queens County, granted the defendants' motion. Plaintiff appealed. The Appellate Division, Second Department, reversed the Supreme Court's ruling and denied the defendants' motion in its entirety. The Court stated that the work the decedent was performing at the time of death constituted an "alteration," and therefore fell within the scope of Labor Law section 241(6). The Court also stated that because the defendants were aware that there were energized electrical circuits in the area where the decedent was working, they had notice of a dangerous condition. As such, even if they did not have control over the decedent's work area, the fact that they were aware of the condition precluded them from prevailing on summary judgment. Thanks to Brad Thelander for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03863.htm Previous Next Contact