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News Expert’s Questionable Report Ultimately Thwarts Summary Judgment (PA) June 9, 2023 < Back Share to: In deciding an appeal from the Court of Common Pleas of Philadelphia County, the Superior Court of Pennsylvania determined that summary judgment in a personal injury action was inappropriately granted in favor of defendant Consolidated Railroad Corporation (Conrail). The trial court’s conclusion that no genuine issue of material fact was created as to causation even though a belated plaintiff’s expert’s report concerning the alleged exposure to asbestos and diesel was deemed error. The plaintiff claimed that his work for the defendant exposed him to asbestos and caused him to develop stage 0 chronic lymphocytic leukemia (CLL). An expert for the plaintiff produced a report that indicated how long the plaintiff was exposed to asbestos and the lack of non-occupational sources of cancer-causing chemicals, such as cigarette smoke. Conrail filed a motion for summary judgment asserting that the expert’s report failed to provide a methodology for reaching the opinion that occupational exposure caused the plaintiff’s injury. The trial court was persuaded that the expert could not reach an opinion as to causation because it found that the report did not indicate the level or manner of exposure. The Superior Court disagreed. Instead, the Superior Court noted that the expert’s opinions were derived from the industrial report of another expert discussing plaintiff’s exposure levels in detail and providing a generally accepted methodology. The appellate court also noted that dose analysis is not required for an expert to opine as to medical causation, and drawing inferenced from published scientific literature is itself a generally accepted methodology of expert opining. However, the methodological sufficiency of the expert’s report was not the only factor recognized in concluding that there was a genuine issue of material fact; the Superior Court of Pennsylvania emphasized the special standard of proof under FELA. Citing Labes v. New Jersey Transit Rail Operations, Inc., 863 A.2d 1195 (Pa. Sup. Ct. 2004), the appellate court explained that under FELA a case should be permitted to reach the jury if the proofs justify the conclusion that employer negligence played even the slightest part in producing the plaintiff’s injury. If it is possible that the employee’s injuries may have resulted from the employer’s negligence, summary judgment is not appropriate. Anderson v. Consolidated Rail Corporation, 2023 WL 2607444 (Pa. Sup. Ct. 2023) shows us just how relaxed the standard for escaping summary judgment is for a plaintiff bringing a personal injury action under FELA. Even when the plaintiff alleges causation using an expert report that is arguably deficient, the plaintiff will have raised a genuine issue of material fact as to causation upon demonstrating the smallest likelihood that the employer contributed in the smallest way to the plaintiff’s injury. Thus, in a motion for summary judgment by a FELA defendant, a plaintiff’s seemingly inexpertly raised issue is likely still genuine. Thanks to Ben Salvatore for his contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Inappropriate Juror Behavior Strikes Again November 4, 2021 < Back Share to: Several months ago, we reported on the inherent pitfalls of social networking sites, such as facebook, in the realm of jury instructions. http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=539 That case involved a Bronx arson trial, which nearly resulted in a mistrial due to a juror trying to "friend" a trial witness. Facebook and other avenues cyber-contact are obviously the most recent and technological means of potentially inappropriate juror contact. Nevertheless, it would appear that good old-fashioned note passing is still alive and well in Connecticut. In the well-publicized home invasion murder trial currently pending in New Haven Superior Court, an alternate juror purportedly passed a note to a court officer, suggesting that the two meet over the weekend. Rather than play it safe and check the "maybe" box, as a few of us may have in the 7th grade, the court officer immediately (and wisely) turned the note over to the judge. Judge Blue called the note a "spectacular display of poor judgment" on the juror's part, but thankfully elected to continue the proceedings, rather than grant the defense request for a mistrial. http://www.nypost.com/p/news/local/report_juror_love_note_deliberations_xUOlv2OJVDwdx0VNH4Z8bO The lesson to be taken here is the inherent unpredictability in jury trials. This alternate juror appears to have completely ignored judicial instructions to refrain from contacting persons involved in the proceeding -- in a tragic, home invasion murder trial. If a juror would ignore instructions in a capital trial such as this one, it is not difficult to imagine equally inappropriate, and potentially more damaging juror behavior in a civil action involving admittedly much less serious allegations. To paraphrase former pitcher Joaquin Andujar's comment on baseball, one can summarize jury trials in one word - "you never know." Thanks to Brian Gibbons for his contribution to this post. Previous Next Contact

News Keep Your Hands to Yourself (NY) July 2, 2020 < Back Share to: This case should serve as a cautionary tale to manufacturers or business owners who choose to modify machinery. In Mercedes v. 248 JD Food Corp. et al, (2020 NY Slip Op 03592), plaintiff was a butcher at a Bravo Supermarket in the Bronx who had a work-related accident involving a meat grinder. As he was cleaning the hopper [a basin with rotating paddles where the ground meat drops into], the mixing paddles suddenly started rotating, causing serious injury to his hand. Plaintiff sued the manufacturer of the meat grinder, ITW Food Equipment Group, LLC, under products liability claims alleging it was unsafe and defective. Defendant ITW moved for summary judgment along with a report from an engineer arguing plaintiff’s injury resulted from a post-sale modification to the meat grinder. It was shown that the product included a magnetic safety mechanism that would have prevented such an accident and the machine was re-wired to bypass it. The engineer opined the meat grinder was made to industry standards and was sold by ITW in safe condition. Defendant ITW’s summary judgment motion was granted and the First Dept. affirmed the ruling. Under certain circumstances, a manufacturer is strictly liable for any defects or design in the machinery it sells, or if it is proven the machine left the manufacturer in an un-safe condition. Here, the court agreed that a manufacturer is not liable for harm that results from modification by a third-party rendering a safe product defective. But for the safety mechanism being disabled, the injury would not have occurred. In this instance, manufacturer’s liability was cut off when another party removed the safety mechanism. A manufacturer designs and sells a product with specifications for its intended use. If anyone modifies, alters, changes, or chooses to use a manufactured product in any way other than its intended use, then liability to the manufacturer will cut-off and you will be left holding the bag. Thanks to Raymond Gonzalez for his contribution to this post. Please contact Vincent Terrasi with any questions or comments. Previous Next Contact

News NY App. Div. Rules Landowner's Lack of Snow Removal Documentation Thwarts Summary Judgment June 16, 2010 < Back Share to: In Ferguson v Shu Ham Lam, the Second Department examined a snow/ice related slip & fall from January 2001. While the Administrative Code of the City of New York § 7-210 creates a duty to remove snow and ice, that statute was not yet in effect in 2001. Nevertheless, an owner of property abutting a public sidewalk may be held liable for personal injuries sustained on that sidewalk if the owner undertook snow removal efforts that made the sidewalk even more dangerous than it would otherwise have been. The onus, then, is on the defendant property owner to demonstrate that it did not worsen the condition of the sidewalk in its shoveling practices. Unfortunately for the owners (and their carrier), they maintained no employee/maintenance records whatsoever regarding who shoveled, when they shoveled and where they shoveled in relation to this sidewalk. According to the Court, the lack of documentation regarding the shoveling creates triable issues of fact as to whether the defendant/owner may have exacerbated the hazardous nature of the ice. Had they maintained work logs regarding the who/when/where of their shoveling practices, it seems they would have satisfied the Court's standard for summary judgment. While the Court seems to mandate the unreasonable here (i.e., that the landowner prove a negative), work logs would probably have done the trick here. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04948.htm Previous Next Contact

News Specificity and Clarity Required in Big Apple Maps March 24, 2009 < Back Share to: In 1982, plaintiffs' tort lawyers created Big Apple Pothole & Sidewalk Protection Committee to keep track of sidewalk defects in the five boroughs. The company periodically files "Big Apple maps" with the City of New York in an attempt to provide the city with the legally required notice of sidewalk, curb and crosswalk defects necessary to sustain negligence claims. In two recent cases that reached the Court of Appeals, the Court ruled that the symbols on Big Apple maps must be clear in their representation of the defect and the plaintiff's case must show that the fall was caused by that particular defect. In D'Onofrio v. City of New York, the symbol of a raised sidewalk was clear, but the plaintiff claimed that he fell on a grate or broken concrete. Since there was no evidence of an uneven sidewalk on the map, the Court rejected the jury verdict in favor of the plaintiff and dismissed the case as a matter of law. In the companion case of Shaperonovitch v. City of New York, the plaintiff alleged a fall on a raised sidewalk. The Court found the symbol at that location was ambiguous and did not indicate an elevation. The Court rejected the jury verdict in favor of the plaintiff. Thanks to Robin Green for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09860.htm Previous Next Contact

News Lights Out On Lamp, Court Sheds Light On Service Of Process (PA) April 8, 2021 < Back Share to: In recent case, Gussom v. Teagle, the Pennsylvania Supreme Court revisited the issue whether a lawsuit should be dismissed due to Plaintiff’s lack of effort to complete service – regardless of Plaintiff’s intent. On July 25, 2016, Rasheena Gussom and Maurice Teagle were involved in a car accident. Two months before the statute of limitations expired, Gussom filed a civil complaint against Teagle. Gussom attempted to serve Teagle in Philadelphia and then again in Virginia. After the statute of limitations had expired, Gussom filed a praecipe to reinstate the complaint and unsuccessfully attempted to serve Teagle via certified mail. A few months later, Teagle filed preliminary objections to Gussom’s complaint which argued no good faith effort was made to serve him before the statute of limitations expired. The trial court sustained Teagle’s preliminary objections and dismissed Gussom’s complaint with prejudice. The Pennsylvania Superior Court affirmed the dismissal of a civil complaint citing Plaintiff failed to make a good faith effort to timely serve the Defendant. On appeal, the Pennsylvania Supreme Court affirmed the rulings of the Superior Court and trial court, therefore dismissing the Plaintiff’s complaint with prejudice. In its analysis, the Supreme Court revisited the Lamp Rule which originated from Lamp v. Heyman. The Lamp Rule prohibited plaintiffs filing a writ of summons prior to the expiration of the statute of limitation and then making no effort to service the defendant. However, over time the Lamp Rule has been interpreted to dismiss only claims in which plaintiffs have shown intent to stall the judicial process. The new standard set out in Gussom is that a plaintiff must make a good faith effort to serve process upon a defendant. The plaintiff has the burden of proving they diligently attempted timely service on the defendant, regardless of whether the plaintiff’s actions were intentional. The Gussom Court held the trial court now has full discretion to dismiss a complaint when plaintiff fails to offer proof of attempted service in a timely manner and there is no evidence that Defendant had actual notice. The trial court need not take into account the intent of the Plaintiff nor the prejudice on the defendant when deciding to dismiss a complaint. Of major import, this case places a higher burden on Plaintiff to show diligent efforts of service, especially after the statute of limitations has expired. Additionally, this case aids Defendants in filing preliminary objections, as prejudice is not a factor in the Gussom decision. Thanks to Madeline Troutman for her contribution to this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Cost-Effective ADR -- Brought About by a Not-So Cost-Effective Appeal (PA) January 10, 2019 < Back Share to: On January 4, 2019, the Superior Court of Pennsylvania vacated a May 23, 2017 ruling in the Court of Common Pleas of Fayette County that overruled the preliminary objections of Golden Gate National Senior Care, LLC. Those preliminary objections sought to compel arbitration. At the trial court level, Golden Gate sought to enforce a compulsory ADR agreement signed by Mildred Snyder’s husband, Donald Snyder, upon Mrs. Snyder’s admission to the Golden Gate National Senior Care facility in 2006. However, the trial court overruled their preliminary objections arguing there was no meeting of the minds as to the ADR agreement, Mr. Snyder lacked the authority to execute the agreement, and the agreement lacked consideration and was unconscionable. The Superior Court quickly determined that lower court abused its discretion in overruling Golden Gate’s preliminary objections. However, the Court first had to determine if it had authority to hear appeal of the interlocutory order. In Pennsylvania, an appeal may be taken from a court order denying an application to compel arbitration made under 42 Pa.C.S.A. 7304. The Pa. Supreme Court in Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490 (Pa. 2016) heard an appeal regarding the enforceability of an ADR provision similar to the provision in the present case. Therefore, the Court ruled it could move forward with reviewing the interlocutory order. Once the court overcame that procedural hurdle, the court quickly disposed of the arguments that the trial court made in declining to enforce the ADR provision as the lower court failed to provide sufficient justification for its actions. Although Golden Gate prevailed on appeal, their frustration at the added expense of motion and appellate practice would be understandable, in light of the clear binding ADR language in the agreement. Thanks to Garrett Gitler for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News “Special Errand” For Employer Puts Accident On Trip Home From Work Under Workers’ Compensation November 24, 2011 < Back Share to: In Matter of Borgeat v. C & A Bakery, the New York Appellate Division, Third Department upheld a finding that injuries caused by an accident involving an employee traveling home was compensable under Workers’ Compensation because the employee was performing a “special errand” for the employer. The employee, who died in the accident, worked at a bakery. He was often asked to deliver cakes to a restaurant on his way home from work. After the accident, which took place only two blocks from the restaurant in question, a cake box was found in the car. This was sufficient to support a finding that the decedent’s death arose out of and in the course of his employment. For more information on this post, please contact David Tavella at dtavella@wcmlaw.com http://decisions.courts.state.ny.us/ad3/Decisions/2011/511442.pdf Previous Next Contact

News Heads Up: Lacrosse Player Injured During Drill (NY) March 2, 2018 < Back Share to: In Tauro v. Gait and Syracuse University, Plaintiff, a varsity womens' lacrosse player at Syracuse University, was struck in the head with a lacrosse ball thrown by her coach , allegedly negligently. Plaintiff was injured during a ground ball drill, and plaintiff said she was unprepared to receive the hard, overhand pass that struck her in the head. Defendants moved to dismiss the complaint on the grounds that a waiver signed by plaintiff established a complete defense to the allegations, and that the complaint failed to state a cause of action because plaintiff assumed the risk of injury. In the waiver, plaintiff agreed that she was “fully aware ... that ... participation [in lacrosse] involves risk of injury ....” She further acknowledged in the waiver that she accepted, and assumed all such risks, whether or not presently foreseeable and whether or not caused by the negligent acts or omissions of others. The trial court denied the summary judgment motion. The Appellate Division, Fourth Department, upheld the lower court’s decision because they ruled the defendant’s actions did not fall within the assumption of the risk doctrine for sports. The court held that defendant’s actions were totally inconsistent with the drill and as such, throwing the ball toward her head was grossly negligent and extremely reckless. The conditions caused by the defendants' negligence were unique and created a dangerous condition over and above the usual dangers that are inherent in the activity. As such, the waiver signed by the plaintiff was not valid due to the gross negligence of the coach’s action. Syracuse University’s Women’s Lacrosse Team is nationally ranked. Gary Gait, the defendant, is still the coach of the team. Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News Time's Up: Insurer Cannot Rely on Policy Limitation to Disclaim Coverage Because of Failure to Timely Notify Insured April 26, 2024 < Back Share to: In Reidy Contracting Group, LLC v. Mt. Hawley Insurance Company , the Western District of New York analyzed the scope of New York Insurance Law §3420(d), which requires a liability insurer to give written notice of a disclaimer of coverage to the insured “as soon as is reasonably possible.” 2024 WL 1345704 (W.D.N.Y. Mar. 29, 2024). Mt. Hawley first disclaimed coverage to general contractor Reidy, its additional insured, for a construction injury lawsuit in February of 2012. Id. at *2. Nine years later, Mt. Hawley cited a policy limitation for bodily injury arising from an additional insured’s negligence as another basis for disclaimer (the “Limitation”). Id. Reidy and its excess carrier asserted that Hawley’s reliance on the Limitation was untimely pursuant to §3420(d). Id. Mt. Hawley contended that Reidy’s settlement in the underlying lawsuit reflected that it had no actual interest in coverage, meaning Reidy’s excess insurer was the “real party in interest.” Id. The Court disagreed, holding that Reidy’s request for a declaration of entitlement to coverage in the instant matter constituted an “actual interest” in coverage. Id. at *3. Mt. Hawley next argued that its disclaimer was based on a lack of insured status, rather than on a policy exclusion. Id. Mt. Hawley asserted that the policy restricted additional insured status to entities with liability arising from “general supervision of the named insured’s work.” Id. The Court found the policy language was not so limited—it also extended additional insured status to entities “required by written contract” to receive coverage for work-related liability. Id. at *4. Considering these conditions and the Limitation together, the Court concluded the Limitation constituted an exclusion to coverage. Id. Finally, Mt. Hawley asserted it could not have timely disclaimed because the Limitation required evidence that Reidy was “actively at fault,” a question of fact “bound up with the merits” of the underlying lawsuit. Id. at 5. However, the Court emphasized that no relevant caselaw suggested an insurer could not “deny coverage when extrinsic evidence shows that coverage is unavailable.” Id. In sum, the Court found Mt. Hawley failed to provide timely notice to Reidy under §3420(d) and could not disclaim under the Limitation. Id. at 6. Reidy Contracting Group LLC v. Mt Hawley Insurance Company .pdf Download PDF • 245KB Previous Next Jessica Whelan Jessica Whelan Associate +1 267 665 0877 jwhelan@wcmlaw.com Contact

News Failure To Establish The Standard Of Care In A Pennsylvania Negligence Action Leads To Entry Of Non-Suit June 16, 2023 < Back Share to: In Pennsylvania, expert testimony as to the standard of care and deviation therefrom is most commonly seen (and required) in professional liability cases. However, such evidence can be required in ordinary negligence actions involving subjects that require knowledge, information, or skill beyond what is possessed by the ordinary juror. In Green v. Palfrey, the Pennsylvania Superior Court addressed this issue in a case where a truck driver sustained a shoulder injury while attempting to fill his tanker trailer at the G Street Terminal in Philadelphia. The injury occurred while plaintiff was attempting to lift a heavy fill arm. Plaintiff sued the owner and operator of the terminal, alleging that they negligently operated and maintained the terminal and knew or should have known of the defective condition of the terminal equipment. Prior to the start of trial, defendants moved for compulsory non-suit due to Plaintiff’s failure to prove the applicable standard of care and deviation therefrom. The trial court granted the application. On appeal, plaintiff argued that he was not required to present expert testimony to establish the standard of care and deviation because (1) he raised only an ordinary negligence claim, and (2) the issue as to whether the fill arm was too heavy could easily be understood by the average juror. However, the Court disagreed and affirmed the trial court’s decision, holding that the proper maintenance, design, and inspection of a fuel fill arm is not within the ordinary knowledge or experience of the average lay person. The Court added that without expert testimony as to the complicated equipment, the jury would be left to speculate as to as defendants’ liability. Accordingly, the Court held that there could be no “fair and reasonable disagreement” about whether plaintiff established the standard of care and defendants’ deviation therefrom. The Green decision serves as a reminder that a plaintiff may be required to produce expert testimony in an ordinary negligence case where the liability issues are complex and require specialized knowledge or skill for a jury to resolve. The failure to provide such evidence can result in the dismissal of the case. Thank you to Gianna Hroncich for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Court Rejects Summary Judgment in Hockey Puck Suit (NY) April 26, 2018 < Back Share to: In Smero v. City of Saratoga Springs, et. al., plaintiffs' 10–year old daughter sustained injuries to her head when she was struck by an errant hockey puck that left the ice while she was watching a youth hockey practice at Vernon Rink in Saratoga County. In their complaint, plaintiffs alleged that defendants failed to install proper safety netting or barriers in the area where the child was injured. After the death of a fan at a hockey game in 2002, the NHL required that all hockey arenas erect safety netting around the glass at both ends of the rink. The defendant moved for summary judgment on the assumption of risk doctrine, but the Supreme Court denied defendants’ motions for summary judgment. The Appellate Division, Third Department affirmed the lower court decision and determined that the assumption of risk doctrine did not apply to these facts. Under the assumption of risk doctrine, consenting “[s]pectators and bystanders ... assume risks associated with a sporting event or activity, even at times when they are not actively watching the event.” However, the Appellate Division held “notwithstanding a spectator's assumption of risk, an owner or occupier of land remains under a duty to exercise reasonable care under the circumstances to prevent injury to those who are present." In the context of hockey rinks, “the owner's duty owed to spectators is discharged by providing screening around the area behind the hockey goals, where the danger of being struck by a puck is the greatest, as long as the screening is of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire to view the game from behind such screening.” The Appellate Division noted that at the time of the incident, two separate hockey practices were ongoing, and, to accommodate this, the hockey goals were set up in a cross-rink fashion to allow both practices to use the hockey rink at the same time. Thus, the goals were repositioned across the width of the ice rink instead of at the ends of the rink where they are normally situated. Plaintiff’s expert engineer opined that placement of the hockey goals in a cross-ice fashion on the sides of the rink and “directly in front of an area of the rink with a significant gap in the protective screening [ ] created the significant likelihood that a puck traveling at high velocity would leave the playing surface, placing spectators ... in danger of injury.” The Appellate Division held that the change in position of the goals and the possibility that pucks could more readily go into the stands from the changed position led to a question of fact to deny defendants’ motions for summary judgment. Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact