Wade Clark Mulcahy LLP

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 Pennsylvania Court Holds Auto Carriers Subject To Bad Faith Statute February 15, 2011 < Back Share to: < ![CDATA[Pennsylvania Court Holds Auto Carriers Subject To Bad Faith Statute]]> Previous Next Contact

News Plaintiff Can Pursue Punitive Damages Against Bacardi In Strict Products Liability October 14, 2011 < Back Share to: In [i]Sclafani v Brother Jimmy's BBQ, Inc., [/i]the plaintiff was a patron at the defendant's bar when the bartender, in a pyrotechnic display, poured Bacardi 151 rum onto the surface of the bar and ignited it. The flame spread to the bottle and flames shot out of the mouth of the bottle and burned the plaintiff. She brought a strict products liability action against Bacardi based on a defective design claim. Bacardi moved to dismiss the claim because the bottle included warning labels and a removable flame arrester. The Appellate Division denied the motion, noting that Bacardi failed to submit any evidence substantively contradicting the complaint or the conclusions of the plaintiff's experts. Interestingly, the court noted that Bacardi actively promoted "the very pyrotechnic uses that caused plaintiff's injuries" and declined to dismiss the plaintiff's claim for punitive damages. Thanks to Bill Kirrane for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2011/2011_07184.htm Previous Next Contact

News Beware the Insufficiently Detailed Expert Affidavit in NY. May 25, 2012 < Back Share to: In Wing Wong Realty Corp. v. Flintlock Constr. Servs., LLC, the plaintiff alleged damages to its building as the result of excavation work at an adjacent construction site. In support of its motion for summary judgment, one of the defendants (the project's engineering consulting firm) submitted an affidavit from an expert asserting that the engineering firm had acted in accordance with good and accepted engineering practice. The affidavit failed to indicate whether the expert had done such things as examined the excavation site, reviewed the drawings of the shoring and underpinning that were alleged to be faulty, or reviewed the designs that engineering firm had proposed changing (to prevent an incident). In affirming the denial of the motion for summary judgment, the First Department noted that the expert affidavit (which was the basis for the motion) was not good enough to support the award of summary judgment. This decision warns parties -- do your homework and actually draft a good and detailed affidavit, or don't bother drafting one at all. Special thanks to Lora Gleicher for her contributions to this post. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .     Previous Next Contact

News Amendment to NJ UIM Statute Denied Retroactive Application December 2, 2009 < Back Share to: In Ruoff v. American Asphalt Company, the plaintiff was driving an automobile owned by his employer, defendant American Asphalt Company, Inc. (American Asphalt). Penn National insured the vehicle. Plaintiff filed a claim for UM/UIM coverage with Penn National. The insurer "stepped down” the amount recoverable by plaintiff from $1,000,000 to $100,000, the maximum amount of coverage available under plaintiff's wife's auto insurance policy. Having exercised the step-down provision, Penn National denied the claim. The plaintiff subsequently filed a complaint against his employer and Penn National alleging that the step-down provision was vague and ambiguous, that the broker and Penn National owed a duty to disclose to his employer the consequences of the step-down provision to its employees and deprived the employer of exercising an informed choice, and that enforcement of the step-down provision by insurers, such as Penn National, was against public policy The trial court denied plaintiff’s motion and dismissed all claims against defendant Penn National. Soon thereafter, the Legislature passed and the Governor signed an amendment to N.J.S.A. 17:28- 1.1 (f), which provides: …” a motor vehicle liability policy or renewal of such policy of insurance insuring against loss sustained by any person arising out of the ownership, maintenance or use of motor vehicle issued to a corporate or business entity shall not provide less uninsured or underinsured motorist coverage for an individual employed by the corporate or business entity…” The Appellate Division was asked to determine whether the subsequent amendment to the statute should be applied prospectively or retroactively. The court held that the amendment is to be applied prospectively. The Appellate Division reasoned that at the time of his accident, neither plaintiff nor Penn National had any reasonable expectation that the step-down provision was unenforceable. Retroactive application of the amendment to plaintiff would amount to a windfall for him and a dramatic alteration of expectations founded in contract for Penn National. Thus, retroactive application of the amendment would defeat the insurer's reasonable reliance on settled legal principles and its reasonable expectations. Furthermore, plaintiff had no reasonable expectation of the greater benefit. Thanks to Sheila Osei for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a0958-08.pdf Previous Next Contact

News No Coverage to Insured Where it did Not Cause the Damage April 20, 2018 < Back Share to: In Consolidated Rail Corporation v. ACE Property & Casualty, Consolidated Rail owned/operated several freight yards and geographical sites from 1976-1999. During that time, the Environmental Protection Agency conducted studies at several of the Conrail locations. The EPA found that many of the sites were contaminated with toxins resulting from toxin spills, waste storage, and other harmful practices that occurred before Conrail owned/operated the properties. Nevertheless, because Conrail owned/operated the properties, it was responsible for the remediation costs and related expenses, for which it paid millions of dollars. Conrail then sought coverage from its insurers who denied coverage. The relevant policy language stated: “TO INDEMNIFY THE INSURED FOR ANY AND ALL SUMS THE INSURED SHALL BECOME LEGALLY LIABLE TO PAY AS DAMAGES, INCLUDING LIABILITY ASSUMED BY THE INSURED UNDER ANY AGREEMENT OR CONTRACT, TO ANY PERSON OR PERSONS AS COMPENSATION FOR: * * * (b) DAMAGE TO OR DESTRUCTION OF PROPERTY, INCLUDING LOSS OF USE THEREOF, EXCLUDING INSURED'S OWN PROPERTY BUT INCLUDING PROPERTY OF OTHERS IN INSURED'S CARE, CUSTODY OR CONTROL; * * * ARISING OUT OF ANY OCCURRENCE OR OCCURRENCES CAUSED BY OR GROWING OUT OF THE INSURED'S OPERATIONS ANYWHERE IN THE WORLD, AND ALL OPERATIONS INCIDENTAL THERETO. * * * Occurrence means an event, or continuous or repeated exposure to conditions which cause injury or damage during the term of the policy.” Conrail sued and the court interpreted “CAUSED BY OR GROWING OUT OF” to allow Conrail to be reimbursed for environmental contamination only if Conrail caused the damage. The environmental contamination occurred before Conrail owned/operated the properties, and Conrail did not cause any of the damage. Consequently, the trial court ruled Conrail was not entitled to coverage under the policies. The trial court recognized that “The result is somewhat unusual-where Conrail did nothing wrong, it is not covered, but where it is at least partially at fault, it is entirely covered.” On appeal, the Superior Court upheld the “sound analysis” of the trial court. This case highlights the importance of careful drafting/reading of insurance policies. Many individuals may disagree with the Court’s decision from a fairness standpoint, but it is one that the policy language dictated. Depending on the policy language, being at fault may be a good thing. Thanks to Malik Pickett for his contribution to this post.     Previous Next Contact

News Preservation of Appellate Review – Is It Waived? July 21, 2023 < Back Share to: Dupree v. Younger, Case Number 22-210 (May 25, 2023) addresses the preservation of legal issues for appellate review. In Dupree, the U.S. Supreme Court found that a summary judgment motion “allows the district court to take first crack at the question that the appellate court will ultimately face: Was there sufficient evidence in the trial record to support the jury’s verdict?” The court also found that “[b]ecause the factual record developed at trial supersedes the record existing at the time of the summary judgment motion, it follows that a party must raise a sufficiency [of the evidence] claim in a post-trial motion in order to preserve it for appeal.” The court further found that a “repeat-motion requirement” would be an “empty exercise,” where the averse ruling is based on a purely legal issue because “a purely legal question is, by definition, one whose answer is independent of disputed facts” and, thus, “factual development at trial will not change the district court’s answer.” Applying this reasoning to the case at hand, the Dupree Court unanimously held that where an averse pretrial ruling is based on a purely legal issue, a litigant need not, to preserve the issue for appellate review, re-raise the issue at or after trial. The Take Away. Be careful! While Dupree eliminates the need to re-raise averse rulings on purely legal issues; to avoid waiver, and preserve appellate review of fact-based issues, one must re-raise the fact-based issue(s) at trial and by post-trial motion. Thanks to Charles "Chip" George for this post. Please contact Chip with any questions. Previous Next Contact

News In Philly, Neither Artists Nor "Red Hot Sex" Give Rise to a Federal Cause of Action. June 16, 2010 < Back Share to: Perry Milou is a pop artist -- http://www.perrymilou.com/website/. To make himself better known, back in 2007, he decided to host an art exhibition and show entitled "Red Hot: The Art of Sensuality and Sexuality" -- http://pdf.wcmlaw.com/pdf/Red Hot Website.pdf. The exhibition included art work and couple's sessions on such topics as body piercing, pole dancing and spanking. The problem? His landlord at Rittenhouse Plaza in Philadelphia -- one of the most prestigious buildings and locations in the City -- didn't want such an exhibition on its premises. He was told that if the exhibition went forward, his month to month lease would be terminated. So what did Mr. Milou do? He had the exhibition. And, his landlord terminated the lease. A press furor resulted. http://abclocal.go.com/wpvi/story?section=news/local&id=5746584 But then the public lost interest and the case went away, until, that is, this past February when Mr. Milou went legal. He claimed that his First Amendment rights had been violated. He made this claim by first alleging that he, an artist, was a member of a suspect class entitled to Sec. 1985 protection. When this didn't work, he claimed that his landlord was acting under color of state law and made a Sec. 1983 claim. In a case with which we are quite familiar, the lawsuit has just been dismissed by USDC Judge Dalzell in the Eastern District of Pennsylvania. http://pdf.wcmlaw.com/pdf/Red Hot Opinion.pdf The decision is quite funny on its own (especially footnote # 1) and James Madison does not have to roll over in his grave. If you would like more information about this post or WCM's First Amendment defense practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact