Wade Clark Mulcahy LLP

News A Tort without an Actual Injury is not a Tort at All February 4, 2016 < Back Share to: The economic loss rule provides there can be no recovery in tort when the only damages alleged are for economic loss. In other words, a plaintiff who has sustained an economic loss, but has not sustained any injury to person or property is limited to recovery in contract. In Blockwell Realty LLC v. J.D. Kitton, Inc., plaintiff, an owner of a building located in Huntington, New York, commenced an action to recover damages for “loss of income” against defendant-tenant (an owner of a wine/chocolate lounge), after the property was damaged by a fire on April 19, 2011. Plaintiff’s claim for loss of income claim sought rental income for a third floor residential apartment that was not built at the time of filing this action. Defendant moved for summary judgment, maintaining plaintiff’s action was barred by the economic loss rule since plaintiff did not allege any damages regarding personal injury or any property. In granting defendant’s motion, the court found the economic loss rule barred plaintiff’s recovery for damages was based on rental income for a third floor residential apartment that was not built at the time plaintiff commenced this action. The economic loss rule is a helpful tool for defense attorneys in evaluating the merits of plaintiff’s allegations. In sum, even if a plaintiff can prove liability, in the event the alleged damages are not based on personal injury to a person or property, the action is subject to dismissal. Thanks to Caroline Freilich for her contribution to this post. Previous Next Contact

News NY App Div Rules Polished Floors Not a Cause of Action December 29, 2009 < Back Share to: In Acunia v. New York City Department of Education, the plaintiff was an eighth grader who slipped and fell while playing basketball in the school gymnasium. The Department of Education moved for summary judgment which was granted by the Supreme Court in Bronx County. The plaintiff appealed and the First Department affirmed finding that, although plaintiff does not bear the burden of identifying the precise cause of his slip and fall, mere speculation is inadequate. The court noted that, the fact that a floor is slippery by reason of its smoothness or polish, in the absence of any proof of the negligent application of wax or polish, does not give rise to a cause of action, or even an inference of negligence. At his deposition, the plaintiff testified that the waxed floor was not wet, that he did not see any accumulation of wax on the floor and he never experienced any slipperiness prior to his accident. Based on this testimony, the court found that, absent proof of negligent application of wax or polish, the fact that floor was slippery because of its smoothness or polished state did not rise to a cause of action. Thanks to Katusia Lundi for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_09537.htm Previous Next Contact

News The Boy Who Cried Wolf? February 21, 2011 < Back Share to: We're all familiar with the story of the boy who cried wolf. It sometimes seems that talking about mold, the "next" asbestos, in the context of New York is like crying wolf. But, if recent news articles are to be believed, mold may really be about to be a problem in NY -- http://nyti.ms/ePGzbl. Maybe this time, there really is a wolf. For more information, about this post please contact Bob Cosgrove at rcosgrove@wcmlaw.com Previous Next Contact

News Playground Safety July 7, 2009 < Back Share to: In Butler v. City of Gloversville (http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05369.htm) the plaintiff fell from a playground slide and sustained injuries. The plaintiff's theory of recovery was that the defendants failed to use the proper ground cover, such as pea stone. The New York Court of Appeals denied the defendants' motion for summary judgment because the plaintiff's expert found support for his theory in the US Consumer Safety Commision's Handbook for Public Playground Safety. Posted by Justin Rowe. Previous Next Contact

News A Lease is a Lease, Regardless of Common Ownership (NJ) April 26, 2019 < Back Share to: In Mastrangelo v. Khanna, the court examined whether the common ownership of two entities that enter into a lease agreement has an impact on the provisions of the lease. Plaintiff Mary Mastrangelo was an employee of Metuchen Cardiology. The plaintiff worked in an office building owned by Khanna Realty, and leased to Metuchen Cardiology. Dr. Sunil Khanna was the owner of both Metuchen Cardiology and Khanna Realty. Under the terms of the lease agreement, Metuchen Cardiology was required to maintain and repair the property. The plaintiff was injured in the interior of the premises, and filed suit against the property owner Khanna Realty. The trial court dismissed the claims against Khanna, finding that Khanna Realty had no duty to repair and maintain the premises under the terms of the lease. The plaintiff appealed, arguing that Dr. Khanna’s common ownership of both entities negated the provisions of the lease insulating Khanna Realty for responsibility for the building. The Appellate Court upheld the findings of the trial court, noting that the lease provisions were clear and unambiguous, and the two distinct entities were free to delegate duties for the property regardless of common ownership. Thanks to Heather Aquino for her contribution to this post. Please email Vincent F. Terrasi with any questions. Previous Next Contact

News Plaintiff's Hail Mary to Overturn Decision Is Denied (NY) February 5, 2009 < Back Share to: In Ninivaggi v. County of Nassau, the 14 year old plaintiff allegedly was injured when he and a friend were playing catch with a football on the premises of an elementary school owned by the defendant Merrick Union Free School District. The injury occurred when the infant plaintiff stepped into a "depression" or "hole" on the grassy field, lost his balance, and fell. The depth of the depression was variously described by the plaintiffs as being two-to-three inches, three-to-four inches, and five inches. The plaintiff had previously played on the field, and admitted that he was familiar with the condition of the field. After discovery was complete, the district moved for summary judgment dismissing the complaint insofar as asserted against it on the ground, among others, that the plaintiffs' claims were barred by the doctrine of primary assumption of risk. The Supreme Court granted the district's motion. The plaintiffs appeal. The Appellate Division Second Department affirmed the decision pursuant to the doctrine of primary assumption of risk. The Court held the doctrine applies to inherent risks related to the construction of the playing field or surface and “encompasses risks involving less than optimal conditions” Here, the district established its prima facie entitlement to judgment as a matter of law on the basis of primary assumption of the risk. The plaintiffs described the grass field on which the accident occurred as “choppy,” “wavy,” and “bumpy,” with several depressions. In other words, the topography of the grass field on which the infant plaintiff was playing was irregular. The risks posed by playing on that irregular surface were inherent in the activity of playing football on a grass field. Moreover, the infant plaintiff's testimony demonstrated that he was aware of and appreciated the inherent risks, and that the irregular condition of the field was not concealed. The Court found a distinction between accidents resulting from premises having fallen into disrepair and those resulting from natural features of a grass field However, there was a lengthy dissent in this matter. Here, the dissent focused on the turf itself where the threshold question with respect to any premises liability cause of action is whether the owner or possessor of the land (or building) breached the duty to use reasonable care to keep the premises in a reasonably safe condition for the protection of all persons whose presence is reasonably foreseeable. Because the plaintiff stated there were depressions in the field and the defendant knew or should have known of them, their motion should have been denied. The Court stated “[E]vidence was presented from which it could be concluded that the District failed to even attempt to properly maintain the field to ensure that it was not hazardous to the children and members of the community that were welcomed to play on it. What incentive does the District have to ensure that future plaintiffs are not similarly injured from its alleged failure to provide a safe ballfield upon which the children from Merrick can play. Although the defendants won on both the state and appellate level, there is potential with this dissent that the Court of Appeals would take up this matter. Thanks to Paul Vitale for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Court Declines To Expand Applicability of Labor Law §240(1) January 5, 2009 < Back Share to: In yet another ruling that limits the applicability of Labor Law §240, the Second Department recently affirmed the lower court’s decision that granted the defendant summary judgment even though the plaintiff’s accident involved a fall in an elevated area. In Rau v. Bagels N Brunch, the plaintiff was hired to install the defendant’s security system. In order to access the attic, he used a ladder already standing beneath an opening in the drop ceiling. Once in the attic, however, in order to run wires for the system, the plaintiff decided to walk along the metal studs, rather than working from below the drop ceiling which would have required going up the ladder, removing the ceiling tiles, installing the wires, then coming down the ladder and moving it to the next area. As he walked along the studs he lost his balance and fell. The plaintiff argued that since his job required him to work in an elevated area Labor Law 240 applied. The Second Department concluded that the plaintiff's accident did not occur because he was in an elevated area and held that although Labor Law 240(1) provides protection for workers against the “special hazards” that arise when the work site itself is elevated "these special hazards do not encompass any and all perils that may be connected in some tangential way with the effects of gravity." http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2008/D21600.pdf Previous Next Contact

News Longshoreman Can Sue Ship’s Owner. November 5, 2010 < Back Share to: The Longshore and Harbor Workers’ Compensation Act allows injured longshoremen working for independent contractors to sue vessels if they can show that the vessel owner had: (a) active control over the area where the injury occurred; (b) turnover duty to maintain gear and the like; or (c) an intervention duty. In Blackwell v. Bonamare Navigation, Blackwell was injured while unloading cargo from a docked vessel. He claimed that Bonamare, the vessel owner, had breached all 3 of the specified duties. Bonamare moved for summary judgment and the federal court has now weighed in -- https://ecf.njd.uscourts.gov/doc1/11915211353 The court rejected the motion for summary judgment and held that the vessel owner, at a trial, could be found to have had “active control” over the accident site and thus liability. The case will therefore proceed to trial, unless, of course, a commercial accommodation can be reached. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Plaintiff’s Lack Of Diligence Merits Dismissal In PA January 20, 2023 < Back Share to: The Superior Court of Pennsylvania recently issued an opinion in which the court laid out the burden that a plaintiff must satisfy when she files a writ of summons to commence a lawsuit. In Senyk v. Ukrainian Catholic Archeparchy of Philadelphia, 2023 WL 127520 (Pa. Super. Jan. 9, 2023), the plaintiff was injured when she slipped and fell while visiting a cemetery in Philadelphia. She thereafter retained counsel and, four days before the expiration of the two-year statute of limitations, she filed a praecipe for a writ of summons to commence a lawsuit against the church organization that operates the cemetery. The plaintiff, however, made no formal attempt to effectuate service on the defendant church organization. Instead, her counsel communicated directly with a claims specialist employed by the organization’s third-party insurance administrator both before and after the filing of the writ of summons. Importantly, in the days between the filing of the writ and the expiration of the statute of limitations, counsel for the plaintiff exchanged emails with the third-party administrator concerning the plaintiff’s accident but did not mention the filing of the writ of summons. Approximately six months after the writ of summons was file and the statute of limitations expired, the plaintiff filed her complaint. The church organization filed preliminary objections in the nature of a demurrer asserting that the plaintiff failed to comply with the rule set forth in Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), in which the Supreme Court of Pennsylvania held that a writ of summons is effective to commence a lawsuit only if the plaintiff thereafter “refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.” The Superior Court held that the plaintiff did not make a “good-faith effort to effectuate notice of commencement of the action” within the thirty-day window following the writ of summons. The key holding of the case is that generally, in Pennsylvania, communication between a plaintiff and a defendant's insurance carrier does not qualify as a good faith attempt at service under Lamp. In Pennsylvania, “the plaintiff is always required to undertake diligent efforts to effectuate notice under Lamp.” Where, as in Senyk, the plaintiff does not comply with their obligations to make a good-faith attempt and undertake diligent efforts, the court will grant preliminary objections in the nature of a demurrer in favor of the defendant. Thanks to Jason Laicha for his contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Surveillance Footage May Be Deemed Speculative For Showing Causation January 13, 2023 < Back Share to: Generally speaking, in order to establish liability for a personal injury action, plaintiff must identify the cause of their injury without engaging in speculation. Courts oftentimes provide liberal application of this and will permit inferences from the facts of the underlying circumstances. However, mere speculation as to the cause of a fall, when many causes present themselves, will not be sufficient. In the matter Cheprakova v. Medicine Plaza, Inc., et al., 2002 N.Y. Slip Opp. 07434 (2d Dep’t Dec. 28, 2022) suit was brought to recover for injuries sustained in a slip and fall action when plaintiff slipped inside a pharmacy owned and operated by Defendant Medicine Plaza. After discovery, Defendant Medicine Plaza argued plaintiff was unable to point to the cause of her fall and moved for summary judgment on the issue of liability. The lower court and the Second Department agreed, and dismissed the claims against Defendant Medicine Plaza. In support of its position, Defendant submitted the deposition transcript and asserted plaintiff did not know the cause of the fall. Plaintiff presented an export report and surveillance footage of the accident. Despite the court being under an obligation to view the evidence most favorable to the non-moving party, the court still determined that the surveillance footage was not sufficient to show the cause of her fall. This court determined that evidence depicting the accident may not be sufficient in establishing the cause of the accident itself, which is a necessary step to recover on personal injury claims for premises liability. Thanks to Chris Palmieri for his assistance with this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Tenant's Tying Up a Vicious Dog Could Place Liability on Landlord November 12, 2010 < Back Share to: In Jones v Pennsylvania Meat Mkt, the plaintiff was bitten on the leg by a pit bull dog near the rear entrance of a grocery store. At the time of the incident, the dog was tied to a store's dumpster. The store was located in a strip mall and the landlord retained security guards to patrol the property. The plaintiff testified he frequently saw the dog, which allegedly was owned by a store employee, tied to the dumpster. He also testified that the dog had a tendency to bark, growl, and strain against its leash to lunge at people who were passing by. In denying the landlord's motion for summary judgment, the court stated the the evidence raised triable issues of fact as to whether the landlord was aware that the dog was being harbored on its premises, whether the dog had vicious propensities, whether the landlord controlled the area where the incident occurred. http://www.nycourts.gov/reporter/3dseries/2010/2010_07897.htm Previous Next Contact

News WCM Announces New Resident Partner in New Jersey Office January 19, 2018 < Back Share to: Wade Clark Mulcahy takes pleasure in welcoming Vito (“Tony”) Pinto as Resident Partner of its Springfield, New Jersey, office. Tony brings 25 years of litigation experience to the firm's New Jersey litigation practice and possesses expertise in the defense of premises liability, property damage, construction defect and environmental matters in state and federal courts. He has also handled many significant and sophisticated compliance and enforcement actions as well as private party cost recovery and multi-party cost allocation proceedings. Tony is joining WCM upon the happy graduation of Denise Ricci from WCM partner to caregiver for her grandchildren and to pursue charitable works throughout New Jersey. Prior to joining WCM, Tony was a partner at a regional law firm where he served on that firm's Management Committee and was in charge of recruitment. Before entering private practice, Tony served as Law Clerk to the Honorable James J. Petrella, Presiding Judge of the New Jersey Appellate Division. He received his law degree, with Honors, from the George Washington University National Law Center and his bachelor's degree from Franklin and Marshall College.   Previous Next Contact