News Soverign Immunity Remains Tough to Overcome in PA. November 23, 2011 < Back Share to: Recently, a three-judge panel of the Pennsylvania Commonwealth Court affirmed the South Eastern Pennsylvania Transportation Authority’s (SEPTA) claim of sovereign immunity in a stationary bus accident. In the case of Wright v. Denny, suit was brought against SEPTA to recover damages stemming from a June 30, 2007 accident where plaintiff was injured when an uninsured driver rear-ended the stopped SEPTA bus he was travelling on. Suing under Pennsylvania’s Motor Vehicle Financial Responsibility Law (MVFRL), the plaintiffs argued that SEPTA was obligated to pay benefits out of its uninsured-underinsured coverage for the June 30 incident. Further, the plaintiffs also claimed that SEPTA was exposed to liability given the motor vehicle exception to sovereign immunity. Senior Judge James R. Kelley, writing for a unanimous court, rejected the plaintiff’s contentions, noting that actions brought pursuant to the MVFRL must comport with the narrowly interpreted provisions of the state’s immunity statues. In Pennsylvania, the motor vehicle exception is applicable only when the local agency’s vehicle is in “operation.” Citing the Pennsylvania Supreme Court’s decision in Love v. City of Philadelphia, Kelley applied a strict definition of “operation” requiring actual motion to trigger the exception. Kelley then went on to explain that stopped vehicles are protected by immunity because “[m]erely preparing to operate a vehicle, or acts taken at the cessation of operating a vehicle are not the same as actually operating that vehicle.” Given that the bus was stopped at the time it was struck, Kelley easily concluded that SEPTA was not subject to the exception thus barring the plaintiff from relief. Special thanks to Adam Gomez for his contributions to this post. For more information about it, or WCM's Pennsylvania practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News In Defense Of Diligence: Second Department Stresses Timely Inspections For Alleged Defects March 8, 2024 < Back Share to: Recently, in Vazquez v. Fordham University , 2024 N.Y. Slip Op. 01124, the Second Department ruled on a plaintiff’s appeal, after the lower court granted summary judgment in favor of premises owner defendant. Plaintiff alleged a trip and fall, where she fell down a flight of steps, which she attributed to a light outage which prevented her from seeing the unevenness of the steps she was traversing. In moving for summary judgment, defendant argued that they lacked actual or constructive notice of the light outage, and admitted a report compiled by an expert who examined the stairs at issue in an attempt to argue that the alleged defect was trivial. The Second Department reversed the lower court’s granting of summary judgment to defendants. Although the court agreed with defendant that they lacked both actual and constructive notice of the light outage, the court disagreed with their argument that the condition of the defective steps was trivial. The court noted that the main support defendants used in arguing the defect was trivial was an expert report. However, according to the court, “the report by [defendant’s] expert had no probative value because the expert did not examine the steps until more than three years after plaintiff’s accident.” Because of this long time-difference between plaintiff’s accident and defendant’s expert report, defendant failed to demonstrate, prima facie , that the alleged defect was trivial, and thus plaintiff’s claim was reinstated. This case serves as a reminder of the importance of quickly organizing an inspection of an alleged defect shortly after an alleged accident. Otherwise, the court will severely discount the probative value of an inspection conducted much later after the accident. Vasquez v. Fordham University .pdf Download PDF • 137KB Previous Next Contact

News D.E.A. Agents Claim "American Gangster" Libeled Them January 17, 2008 < Back Share to: Three former Drug Enforcement Administration agents filed a defamation lawsuit in Federal Court in lower Manhattan, accusing NBC Universal Studios of including an incorrect postscript at the end of its film "American Gangster", indicating three-quarters of the agents that served with the New York D.E.A. were convicted with the help of Frank Lucas, the film's main character. The plaintiffs also took issue with how Mr. Lucas' arrest was depicted in the movie. http://www.nytimes.com/2008/01/17/nyregion/17dea.html?ref=todayspaper Previous Next Contact

News New Jersey Court Finds No Personal and Advertising Injury Coverage for Wrongful Eviction Claim Where There is No Possessory Interest or Right of Occupancy < Back Share to: In Watford Specialty Insurance Company v. MDF 92 River Street, LLC , the New Jersey Appellate Division recently addressed a coverage dispute arising from incident in which a bar patron was injured when he was allegedly thrown down a flight of stairs by bouncers while trying to remove him from the bar. The patron sued the bar and the bouncers for assault and battery and negligence, later amending the Complaint to include a claim of wrongful eviction. The bar owner sought coverage under its CGL policy. The Policy contained an Assault and Battery endorsement which, among other things, provided an eroding $1 million liability limit for such claims. The policy also contained personal and advertising coverage for, among other things, the wrongful eviction from occupancy of a room, dwelling or premises that a person occupies. The insurer Watkins advised that coverage was limited to less than $200,000 as the liability limit for assault and battery claims under the endorsement had been eroded by payment of several other claims. An arbitrator issued a net award of $450,000 against the defendants for plaintiff’s “wrongful eviction and assault” claims. Plaintiff confirmed the award, obtained a judgment against the bar owner, and secured an assignment of rights from the owner. Watkins paid the remainder of the liability limit to plaintiff and sought declaratory judgment that its obligation was limited by the terms of the Assault and Battery endorsement. Plaintiff argued that he was entitled to difference between the judgment and the amount paid by Watkins since the erosive limits under the endorsement did not apply to his wrongful eviction claim under Coverage B. The trial court denied plaintiff’s motion for summary judgment and granted Watkin’s cross motion, finding that Watford had satisfied its obligations under the Policy and that any unsatisfied part of the judgment was not covered by the policy. In doing so, the trial court relied on certain caselaw holding that individuals who do not have a possessory interest in rental property were not covered by a wrongful eviction provision in a landlord’s policy. The Appellate Division affirmed, holding that the underlying plaintiff’s claims emanated from the alleged assault, and crucially, he lacked a possessory interest or the right of occupancy at the bar to trigger coverage for his wrongful eviction claims. Accordingly, the liability limit set forth in the Assault and Battery endorsement applied and Watford had no further coverage obligation because the limit had been fully eroded. The Court agreed that Watford had met all its obligations under the policy and did not have to pay the balance of the judgment obtained against the bar owner. The takeaway from Watkins is that a possessory interest or right of occupancy is required for an insured to obtain coverage for a wrongful eviction claim where the policy language contains that requirement. The Watkins court conducted a careful analysis of the policy language and facts of the case to reach the correct decision and reject the insured’s creative and result-oriented arguments in favor of coverage. Thank you to Bryan Gonzalez-Mejia for his contribution to this post. Please contact Andrew Gibbs with any questions. WATFORD SPECIALTY INSURANCE COMPANY Plaintiff-Respondent v MDF 92 RIVER STREET LLC, et al .pdf Download PDF • 202KB Previous Next Contact

News Yankees Safe in Foul Ball Accident (NY) November 9, 2017 < Back Share to: Yankees fans will recall a scary incident in late September where a young child was struck by a foul ball at Yankee Stadium. Although there has been no word whether the family will sue the Yankees, a recent appellate decision may impact the issue. In Zlotnick v. New York Yankees Partnership, plaintiff brought a personal injury action against the Yankees for injuries sustained when he was struck in the eye by a foul ball as he was sitting in his seat halfway down the first-base line, a few rows from the field. The Supreme Court granted the Yankees’ motion for summary judgment and plaintiff appealed. The First Department upheld the lower court’s decision and ruled the Yankees did not breach a duty of care, since the evidence showed that appropriate netting was erected behind home plate (which is essentially the limit of what a stadium is required to do to meet the duty of "reasonable care") and there was no evidence indicating that there was a lack of available seating in this protected area. The Court rejected plaintiff's argument that the defendants' conduct enhanced the risks normally attendant to the game of baseball because the game was played in rainy weather, and that the Yankees did not enforce the stadium's policy against the use of umbrellas that obstruct the ability of other patrons to view the game, because rainy weather and umbrellas are not uncommon at baseball games. In addition, the Court pointed to the warnings about foul balls on the back of plaintiff's ticket, on the back of the seats, as well as those regularly made over the public address system, which called upon plaintiff to request a change of seating if plaintiff was worried about being struck by a foul ball. Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News Stilt Fall Does Not Trigger Labor Law 240(1) Claim April 26, 2012 < Back Share to: In a minor victory for defendants in the recent Richmond County decision of Garcia v. Mt. Airy Estates, Inc., the trial court dismissed Garcia’s Labor Law 240(1) claim due to the fact that there was no issue raised regarding the malfunctioning of his safety device - a pair of stilts. Garcia, a dry wall laborer, wore stilts as he applied spackle to the ceiling of a garage. While working on the stilts, he claimed that he fell because of debris on the floor. The court held that there was no issue raised to suggest that the stilts failed to perform the function required of them by statute or that they failed to allow Garcia to safely perform his work at the required elevation. All claims sounding in Labor Law 240(1) were dismissed despite the fact that Garcia was in fact working from a height. The court did permit Garcia's Labor Law §§ 200 and 241(6) claims to proceed due to the allegation that debris on the floor caused his fall. http://www.newyorklawjournal.com/CaseDecisionNY.jsp?id=1202549405260   Previous Next Contact

News UIM Claim Results in Bad Faith Punitive Damages Verdict (PA) February 18, 2016 < Back Share to: The case of Bernie Clemens and Nichole Clemens v. New York Central Mutual Fire Insurance Co began on August 26, 2009 when Bernie Clemens sustained back and neck injuries as a passenger in a car rear-ended by an underinsured motorist. He settled with the tortfeasor for her $15,000 policy limit and sought coverage from the UIM carrier for the vehicle in which he had been riding. The accident occurred in Mount Pocono, Pennsylvania. The insurer, New York Central Mutual Fire Insurance Co. was located in Liberty, New York. Although the UIM coverage was $50,000, under New York law, only $35,000 was available above to Clemens above the amount he had received from the tortfeasor. New York Central Mutual initially offered Clemens $7,000 based upon information that Clemens was not wearing a seat belt at the time of the accident. The insurer justified this on the basis of a New York law that this failure was evidence of comparative negligence. As the claim progressed, various conflicts arose between Clemens and the carrier. While the carrier wanted Clemens to travel to its offices 80 miles away from his home to give a statement, Clemens insisted that the adjuster come to him in Pennsylvania. Additionally, Clemens balked at giving HIPAAs for records that he had provided to the insurer. Clemens filed suit against New York Central in federal court. While the UIM claim ultimately settled for $25,000, the claim for bad faith claim proceeded to a five day trial. Clemens alleged that in the process of handling the UIM claim, New York Central committed bad faith in a number of ways, including pressuring claims adjusters to pay less on valid claims, requesting signed authorizations without actually making specific requests, and demanding that Clemens travel to New York Central offices to make a statement under oath. Clemens relied upon an insurance expert who was allowed to testify as to the ultimate issue in the case, i.e. New York Central committed bad faith in its handling of the claim. For its part, New York Central argued that Clemens committed bad faith in refusing to travel to their offices to make a statement, and further claimed that Clemens was deliberately trying to set up New York Central for the bad faith claim. After four hours of deliberation, the jury awarded Clemens $100,000 in punitive damages. Thanks to Melanie Brothers for her contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Louboutin's Ruby Soles May Soon Have More Company In Oz. August 15, 2011 < Back Share to: Christian Louboutin has made a good living understanding the psychology of shoes. His good fortune may be about to change. In Louboutin v. Yves Saint Laurent America, Inc., 11 Civ. 2381 (S.D.N.Y. Aug. 10, 2011), Louboutin sued YSL for trademark infringement of its famous red soles. After some initial discovery, Louboutin moved for a preliminary injunction stopping YSL from using red soles in an upcoming fashion line. To obtain a preliminary injunction, Louboutin had to show a "likelihood of success on the merits." In evaluating the history the red sole, the Court traced its history to "King Louis XIV's red-heeled dancing shoes or Dorothy's famous ruby slippers in 'The Wizard of Oz.' " The court also found that in fashion, color serves ornamental and aesthetic functions vital to competition. Accordingly, the court found that Louboutin's trademark was overly broad and its continuation would likely hinder competition. YSL did not move for summary judgment, but the court encouraged it to do so, and indicated on such a motion it would likely revoke Louboutin's trademark. We can bet that this decision won't die down quietly, and will be appealed, as the red soles are "fashion to die for!" Special thanks to Cheryl Fuchs for her contributions to this post. For more information about it, or WCM's intellectual property practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News From Ancient Egypt to Modern America: Recent News in Art Thefts. September 16, 2009 < Back Share to: On or about September 3, 11 portraits from Andy Warhol's "The Athletes" series were stolen from a Los Angeles home. The portraits -- which include American athletes from Mohammed Ali to OJ Simpson -- are reported to be a "multi-million dollar collection." An investigation is proceeding. http://www.latimes.com/news/local/la-me-warhol12-2009sep12,0,1444024.story In unrelated news, a former employee of Long Island (NY's) Hillwood Museum has just been charged with stealing (and attempting to sell) 9 Egyptian antiquities. He apparently took the works from the museum and gave them to Christie's to auction. The theft was discovered when one of the pieces failed to sell at auction and Christie's offered it in a private sale to a collector who was familiar with the Hillwood collection. More works of art are apparently missing from Hillwood so this investigation and the potential scope of the loss may increase. http://www.newsday.com/long-island/nassau/ex-museum-director-to-surrender-in-theft-of-artifacts-1.1451120 Previous Next Contact

News W.D.PA. -- Moving Trains Are an Apparent Danger (Even to Children). December 10, 2007 < Back Share to: In the case of Nixon v. Norfolk Southern Corp, (PICS Case No. 07-1965), the plaintiff, a 12 year old boy, lost his foot when a train ran over it. The train ran over the foot because the boy (while holding onto the train) fell off of his bike. The defendant railroad moved for summary judgment arguing that the dangers of a moving train were apparent even to a 12 year old boy. The plaintiffs opposed on the attractive nuisance doctrine. The trial court sided with the defendants. Previous Next Contact

News NJ Supreme Court Takes a Mulligan in Defamation Ruling May 31, 2012 < Back Share to: On May 16, 2012, the New Jersey Supreme Court issued an order in W.J.A. v. D.A. holding that presumed damages play a role in defamation cases even in private plaintiff cases where there are no matters of public concern. But after they realized they goofed based on a statute that provided otherwise, they reversed course a few days later. In the underlying defamation case, D.A. claimed that his uncle W.J.A. sexually molested him and created a website discussing the abuse. W.J.A. sued for defamation. The superior court granted summary judgment for D.A. It found that since the postings on the website were more akin to libel (written defamation), W.J.A. had to prove actual injury to his reputation, which he had failed to do. The appellate court reversed and held that a nominal damages award may be made in a defamation case to a plaintiff who has not proven actual harm to his reputation, meaning that a plaintiff may be awarded minimal damages by a jury without any proof of monetary harm. These damages, not based on any monetary loss, are known as presumed damages. They serve as a means to vindicate the plaintiff’s character through a jury verdict establishing that the defamatory statement is false. Furthermore, the Court stated that presumed damages were sufficient to be used as a foundation for punitive damages in a defamation case. Initially, the Supreme Court issued an order, agreeing with the holding in respect of presumed damages. However on May 21, only five days later, the Court issued a corrected opinion revising its earlier rule. Apparently the lawyers representing two amici curiae -- the New Jersey Press Association and the American Civil Liberties Union -- sent a letter to the court immediately after the May 16 opinion was issued advising the court that its decision was in direct violation of the New Jersey Punitive Damages Act, N.J.S.A. 2A: 15-5.13(c). In fact the statute says specifically that an award of nominal damages cannot support an award of punitive damages. Thus in New Jersey, even in cases where a plaintiff may pursue a defamation claim with only nominal damages, he may not request punitive damages unless he can demonstrate actual compensable harm to his reputation. The revised opinion was issued without comment, and mirrors the original save for the fact that the Court removed three sentences from its original opinion, all relating to punitive damages standard, and all in violation of the Punitive Damages Act. Thanks to Remy Cahn for her contribution to this post. If you would like further information, please write to mbono@wcmlaw.com Previous Next Contact

News NY Court Holds Security At Public Park Is A Governmental, Not Proprietary Function March 2, 2010 < Back Share to: In Ruiz c. City of New York, plaintiff was injured when he was assaulted by other children at a public playground. The question was whether supervision of a playground was a “proprietary” function, for which the City could be held liable, of a “governmental” function, for which no liability could attach. The court noted that the determination whether to provide security at the playground is exactly the discretionary type of resource-allocation function that is a governmental function and for which the city should be protected from liability absent a special relationship with the plaintiff. Because no special relationship existed, summary judgment was granted to the city dismissing the complaint. If you have any questions about this post, please contact David Tavella at dtavella@wcmlaw.com Previous Next Contact