News PA Appellate Court Finds that You’re “At Work” While on Your Commute April 8, 2022 < Back Share to: In Bark v. Sooner Steel LLC, the Pennsylvania Commonwealth Court held that a worker was acting within the course and scope of his employment while commuting home from work. The court emphasized that whether someone is acting within the course and scope of his or her employment is a fact specific inquiry. In Bark, the claimant suffered severe injuries in a motor vehicle accident that occurred while he was returning home from work. Before the accident, the claimant, Mr. Bark, and his employer had agreed that he would be paid for the time he worked, as well as the commute. There was, however, no written contract. After the incident, Mr. Bark sought workers’ compensation benefits. The workers’ compensation board denied the claim, finding that the claimant was not acting within the scope of his employment when the incident occurred. Under Pennsylvania law, commuting to and from work is not considered to be within the course and scope of one’s employment (commonly referred to as the “coming and going” rule). There are limited exceptions though. The exceptions are: (1) the employment contract includes transportation to and/or from work; (2) the claimant has no fixed place of work; (3) the claimant is on a “special assignment or mission” for the employer; or (4) special circumstances are such that the claimant was furthering the business of the employer. Each case is extremely fact intensive. Ultimately, the Pennsylvania Commonwealth Court (an appellate tribunal), found that Mr. Bark was acting within the course and scope of his employment when the incident occurred. The court relied on the “humanitarian nature” of the Act. Further, it found that “course of employment” should be broadly construed when the employee is a traveling employee—as Mr. Bark was. Similarly, “course of employment” is broadly construed when there is no fixed place of work. Ultimately, the court determined that Mr. Bark suffered his injuries when while in the “course and scope” of his employment. Thanks to John Lang for his contribution to this article. Should you wish to discuss, please feel free to contact Tom Bracken. Previous Next Contact

News Senior Partner Paul Clark Speaks About Concussions in Sports October 4, 2012 < Back Share to: New York, NY On October 4, 2012, Senior Partner Paul Clark addressed the annual General Liability Council (GLC) of United Educators and spoke on the topic of concussions in sports from a legal and risk management standpoint. The GLC provides expertise on general liability legal issues unique to educational institutions including campus security issues, sexual assaults, catastrophic injuries and insurance coverage. A Reciprocal Risk Retention Group, United Educators is a licensed insurance company owned and governed by more than 1,160 member colleges, universities, independent schools, public school districts, public school insurance pools, and related organizations throughout the United States. Previous Next Contact

News A Plaintiff's Dream? The Unemployed Get Jury Duty Preference. June 25, 2012 < Back Share to: We tend to steer clear of more political discussions here at Of Interest, but every once in a while an idea comes along that we simply have to point out. According to Fred Clark, a well-known blogger, a solution to both the unemployment problem and the boring nature of jury duty would be to give jury duty preference to the unemployed and combine jury duty with a job fair. As if finding a fair and impartial jury isn't hard enough... For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Asleep in Car = At Work? PA Appellate Court Says "Yes". October 15, 2009 < Back Share to: In the case of Kulik v. Mash, the plaintiff arrived for work early, so he decided to nap in his car in his employer's parking lot. While he was napping, a co-worker arriving for work rammed his car into the plaintiff's thereby causing injuries. The question posited for the court was whether the Worker's Compensation Act barred coverage. The Superior Court agreed with the trial court and held that it did. The court held that "waiting for work was within the scope of employment." http://pdf.wcmlaw.com/pdf/Sleeping Employee.pdf Previous Next Contact

News Worker Entitled to Compensation If Pre-Existing Condition Aggravated at Work (PA) November 16, 2017 < Back Share to: A work related injury is compensable under Pennsylvania workers compensation laws even if it is an aggravation of a pre-existing condition such as osteoarthritis. In Brand Energy Services, LLC v. Worker's Compensation Appeal Board , an employer appealed an award by a workers compensation judge arguing that causation had not been established for aggravation of bi-lateral carpal tunnel syndrome, osteoarthritis and other conditions. The employee, a union carpenter, was employed to build, modify and dismantle scaffolding for the employer’s clients. His employer was paid by the foot for the scaffolding erected. The employee had been working days. When he was transferred to a night shift, his work assignment increased from eight hour shifts to ten to twelve hour shifts. He worked thirteen days in a row and had only one day off. Not only was he expected to work longer hours, but to meet the needs of the plant where he was working, they had to erect more scaffolding per shift. He testified that in an eight hour shift, the workers would assemble 300 leg feet of scaffolding. In the night shift, he was building between 1000 and 1200 leg feet. The worker’s hands became swollen under this new work regimen. He sought treatment for his hands, as they continued to be numb, swollen, and tingly. His doctor diagnosed work-related bilateral carpal tunnel syndrome, osteoarthritis, and left scapholunate advanced collapse (SLAC) wrist. When the worker submitted a note from his family practice to his supervisor outlining his diagnoses, he was laid off. On appeal from the workers compensation tribunal, the Court faced two issues: (1) whether the doctor’s testimony was equivocal as to the causal connection between the work and the work-related aggravation of underlying conditions; and (2) whether the doctor had a sufficient understanding of the work, and consequently, a proper factual foundation for a medical opinion such that his opinion was competent. In terms of the former question, the court held the causal connection was a question of law and worker’s burden to present unequivocal medical testimony. At issue was whether the doctor’s use of “probable” with respect to causation of one of three diagnoses rendered the entire opinion insufficient to support any award. The court disagreed with the employer’s argument in this regard. It found that the doctor’s testimony as to the aggravation of carpal tunnel syndrome and osteoarthritis was sufficiently supported. However, because the doctor testified that there was a “probable SLAC wrist,” that diagnosis was insufficiently proven. In terms of the latter question, the Court considered Pennsylvania case law that held proffered medical opinion can be rendered incompetent if the medical professional does not have a complete grasp of the patient’s work, such as if the medical profession demonstrates a lack of knowledge as to his or her patient’s tasks. While the Employer argued the doctor did not have a complete grasp of the job duties, the Court rejected its argument because the doctor reviewed his patient’s testimony and took a history from him. Given this testimony, the Court considered the doctor competent to render an opinion. Thanks to Lauren Berenbaum for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News No Immunity For Utility's Negligent Placement Of Pole May 15, 2012 < Back Share to: In Seals v. County of Morris , the New Jersey Supreme Court held that Jersey Central Power & Light was not immune from liability for its negligent placement of an electrical pole. The Court held that if a government entity directed the utility where to place the pole, then N.J.S.A. 48:3-17.1 conferred immunity on the utility. However, where there is no governmental dictate or order , as in Seals, ordinary negligence standards apply and utility companies that place their poles without considering whether they are in dangerous locations can be held liable for resulting injuries. In Seals , the utility pole had been at its location , an old stagecoach route, since approximately 1937. The location had been the site of several prior accidents and the pole had previously been replaced three times. http://lawlibrary.rutgers.edu/collections/courts/supreme/a-84-10.opn.html Please contact Robert Ball with any questions regarding this post.   Previous Next Contact

News One Witness May Suffice as Deponent for Two Corporations (NY) August 1, 2012 < Back Share to: In Pierre v 100 Corp., the Appellate Division reversed the trial court's order striking the answer of an individual and the two corporate defendants. The trial court held that the defendants did not produce witnesses for a deposition. However, the defendants had produced a witness who was an officer of both corporations for a deposition. Furthermore, the defendants were under no obligation to produce other individuals who were not employed by them or otherwise under their control. The Appellate Division held that the production of a single individual satisfied the defendants’ discovery obligations. Thus, an attorney can avoid the need for multiple depositions by producing a single witness that is an officer of several corporate defendants. Thanks to Bill Kirrane for his contribution to this post. If you have any questions or comments, please email Paul at pclark@wcmlaw.com . http://www.nycourts.gov/reporter/3dseries/2012/2012_05732.htm Previous Next Contact

News "Brawl" At NY Hockey Game Not Assumed Risk October 5, 2009 < Back Share to: Plaintiff was injured at Nassau Coliseum while attending a charity hockey game. During the game, T-Shirts were tossed into the stands and the plaintiff was knocked over in all of the commotion caused by the other spectators trying to catch the tossed T-Shirts. Defendants moved for summary judgment, using an assumption of risk defense. The Appellate Division, Second Department, though not all in agreement on the reason, denied defendant’s motion for summary judgment. The majority concluded that defendants did not prove as a matter of law that they were entitled to summary judgment. In order to prove that plaintiff assumed the risk, they had to prove that “injury-causing events” were a known and foreseeable consequence of attending a hockey game. The majority concluded that defendants had not proven the events were a known and foreseeable consequence. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06791.htm Previous Next Contact

News Plaintiff Cannot Rely on Speculation in NY December 9, 2022 < Back Share to: In Taitt v. Riehm Plumbing Corporation, plaintiff slipped and fell on water that spilled out of a garbage bin positioned to catch a leak from a pipe in the ceiling of a basement storeroom. Defendants repaired the pipes of the ceiling in the basement corridor two months prior. New York Appellate Court reversed the lower court’s decision that denied defendant's summary judgment. The Appellate Court held that there was no issue of fact as plaintiffs were relying on speculation that the leaks in the basement storeroom were connected to the leaks in the basement corridor defendants worked on. The court also held that plaintiff cannot rely upon the doctrine of res ipsa loquitur, because plaintiff cannot establish that the pipes were within defendant’s exclusive control. This will raise the bar on oppositions to summary judgments, requiring more than mere speculation to create issues of fact. Thanks to Jennifer Tuz for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Third Circuit Agrees that Business Earnings Prior to an Accident Are Inconclusive (PA) May 7, 2020 < Back Share to: The United States Court of Appeals for the Third Circuit recently affirmed a decision from the United States District Court for the Western District of Pennsylvania and determined that an insurer’s issues with trial evidence and claims were invalid. In Kirkpatrick v. GEICO Casualty Company, the insurance company moved for relief from a judgment or, alternatively, for a new trial which was ultimately denied on appeal. The underlying incident involved a motor vehicle accident in which Ronnie Kirkpatrick and Michelle Vensel (“Plaintiffs”) suffered permanent injuries after an automobile accident caused by a negligent driver. The plaintiffs alleged that Geico failed to make proper payment of claims under the underinsured motorist benefit of their Geico insurance policy. Specifically, the plaintiffs argued that the accident impacted their car restoration business, despite reporting losses to the IRS in the years leading up to the accident and not having finished or sold any cars to date. In response, Geico argued that the loss of earning capacity was not a result of the automobile accident. However, at the close of trial, a jury returned an award of $900,000.00 in favor of the plaintiffs. On appeal, Geico argued that the jury’s award was against the weight of the evidence because there was no evidence that the plaintiffs’ business lost profits. In fact, the plaintiffs had only recently launched their business and restored extremely expensive antique cars. The jury was able to hear evidence that the cars currently in production had “substantial estimated appraisal value upon completion” and the delays resulted in later-than-anticipated dates of sale. Furthermore, the plaintiffs demonstrated that Ronnie Kirkpatrick was unable to perform his work at the same pace as prior to the accident. Overall, the Court determined the jury had sufficient evidence to conclude that the plaintiffs’ injuries led to a “shorter economic horizon” for their business in the form of less cars restored due to more time per restoration and delayed sales dates. In affirming the District Court’s decision, the Third Circuit relied on Pennsylvania case law holding that “[d]amages for loss of earning capacity arise out of an impairment of that capacity, and not out of loss of earnings.” The Court also determined that the plaintiffs’ earnings subsequent to the injury compared with their earnings at the time of the injury is not conclusive evidence as to whether earning power has been diminished by the accident. Additionally, Geico argued that there was insufficient evidence from which the jury could use as a “yardstick” for calculating lost earning capacity. The Third Circuit disagreed and determined that the damages presented to the jury on the issues were not impermissibly speculative. The Court relied on the Pennsylvania Supreme Court decision Kaczkowski v. Bolubasz, which concluded that some speculation does not justify excluding reliable economic evidence since impression is inherent in any computation of lost future benefits. The Third Circuit also pointed out that inflation and productivity can be included in the computation of lost future earnings. Overall, the Third Circuit held that, based on the evidence presented by the plaintiffs, the jury had a sufficient evidentiary foundation and were not unduly speculative so as to warrant vacating the award. Thanks to Zhanna Dubinsky for her contribution to this post. Please contact Vincent Terrasi with any questions or comments. Previous Next Contact

News Defendant Inadvertently Creates Question of Fact by Producing Conflicting Witnesses (NY) February 7, 2018 < Back Share to: In New York City, where a plaintiff is injured due to a slip and fall within a residential apartment building, a defendant must show through admissible evidence the last time the area was cleaned and inspected prior to the accident. However, it appears that in some instances, this alone is not enough. In Hamilton v. Naica Housing Development, decided on February 6, 2018, the First Dept. upheld the lower court’s denial of the property owners' motion for summary judgment. The property owner had produced two witnesses for a deposition. One witness, the building superintendent, testified that he personally cleaned and inspected the area prior to the accident and did not see any wet substances. The same witness stated that in the event of a wet condition, wet floor signs would be placed immediately, however that had not occurred in this case. The second witness, a housekeeper for the building, who was present at the time of the accident, testified that he saw a wet floor sign in the area of plaintiff’s fall, but that he did not know who placed it there and did not do so himself. The defendant attempted to overcome the difference in testimony by arguing that even if the defendant owner did have notice of a condition between when it was cleaned and the accident, they adequately warned plaintiff by placing a wet floor sign. It is evident in making the motion that the defendant thought both evidence of the last inspection and placement of a warning sign would be sufficient to show that they acted reasonably. However, the Court found that this different testimony from the defendant’s witnesses created issues of fact, namely as to whether the defendant did have notice of a condition and failed to remedy it. Further, the Court found questions of fact as to whether placing a wet floor sign is sufficient to warn or protect from a known dangerous condition, where that condition had not been cleaned up. This decision emphasizes the importance of having witnesses prepared, and their testimony in sync with each other, to eliminate holes in the defense case. Now, not only does this plaintiff have a pathway to trial, but he has an added advantage of facing conflicting defense witnesses. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Failure to Discontinue Constitutes Bad Faith, Frivolous Continuation Warranting Sanctions (NY) September 14, 2018 < Back Share to: A Justice of the New York County Supreme Court recently imposed sanctions on a plaintiff who refused to discontinue against a defendant that made a showing of non-involvement in the happening of the subject accident. In Burgund v. Verizon, plaintiff commenced a Labor Law action after he tripped and fell stepping off of a ladder during his work for Verizon. During the deposition of building’s managing agent, plaintiff learned of the potential involvement of a third party entity known as “A&S.” Thereafter, plaintiff named A&S Group and A&S Construction Corp., among others, as defendants in a separate case that was ultimately consolidated. Upon service of the complaint, A&S Group’s principal immediately contacted plaintiff, explaining that A&S Group had never performed work in the building, never worked for Verizon or any of the other named defendants as a subcontractor or in any other capacity, had no involvement with A&S Corp or its principals, and was not even in existence at the time of the alleged accident. However, plaintiff’s counsel refused to discuss the matter until A&S Group was represented by counsel. Thereafter, A&S Group composed a series of letters over the course of a one-year period, each requesting a voluntary discontinuance against. Each time, these letters went unanswered. Ultimately A&S Group moved for summary judgment in its favor, denying any liability and asserting that plaintiff wrongfully included it in the action without any factual basis. The Court granted the motion, finding that A&S Group had presented affirmative evidence that it never performed any work at the subject building, had no professional relationships with any of the named parties, and was not even a registered corporation at the time of the accident. Further, the Court determined that “regardless of whether [p]laintiff originally brought the action in good faith, plaintiff’s repeated failure to voluntarily discontinue the action, despite three specific requests… constituted a bad-faith frivolous continuation that warranted sanctions.” Thanks to Tyler Rossworn for his contribution to this post. Previous Next Contact