News PA Supreme Court Confirms Third-Party Contractor Has Duty to Warn of Obvious Dangers August 4, 2023 < Back Share to: In a May 2023 opinion, the Supreme Court of Pennsylvania potentially expanded contractor liability to third parties injured by construction defects. See Brown v. City of Oil City, 294 A.3d 413 (Pa. 2023). In 2011, due to weathering and aging, the condition of Oil City Library’s concreate entrance stairs significantly declined since their construction in 1904. Id at 419. As a result, Oil City (“City”) contracted with Harlod Best and Struxures, LLC (collectively “contractors”) to develop plans to reconstruct the stairs and oversee the implementation of those plans. Id. The actual reconstruction work of removing and replacing the stairs was performed by subcontractor Fred Burns Inc., pursuant to a contract with the City and Contractors. Id. Shortly after the stairs were installed, the City began receiving reports about imperfections in the concrete surface, which also began to degrade; these imperfections prompted the City to inform Struxures that it considered the stairs to be “dangerous and defective.” Id. Over the years, the condition of the stairs continued to worsen, neither the City nor Contractors made repairs. Id. In November 2015, David and Kathryn Brown was exiting the library; Kathryn tripped and fell on one of the deteriorated sections, and struck her head, resulting in a fatal head injury. David brought a lawsuit against the City, Contractors, and Fred Burn’s Inc. Id. With respect to the Contractors and Fred Burns, Brown argued that their work on the steps created a dangerous condition and an unreasonable risk of harm. Id. At the trial level, the Contractors filed a successful motion for summary judgement based on the argument that § 385 of the Restatement (second) of Torts provides no duty to out of possession contractors to third parties harmed by conditions of their work done on behalf of another. Id. at 420. However, on appeal, the Supreme Court of Pennsylvania found that nothing in the Restatement that would exempt an out-of-possession contractor from liability when it makes a repair to a chattel that it reasonably should foresee would render it dangerous to a third party who uses it, even when its dangerous condition is obvious. Id at 430. Further, the Court found that a contractor has a duty to inform a third-party user of a dangerous condition when the contractor “has no reason to believe the third party will realize the dangerous condition which the contractor created.” Id. The Court found that a contractor who has created a dangerous condition through work performed for a possessor of land may be liable to all persons injured by the dangerous condition, even if that condition is obvious or apparent in nature. Id at 435. The Court reversed the order for Summary Judgment and remanded the case to the trial court. Id. While this case does not provide a holding that these contractors should be held liable, the Court did hold that these contractors, and those in similar positions could be held liable in these kinds of situations. It is early to tell if this ruling will spark changes in plaintiff’s decisions on what parties to name in a lawsuit. Thanks to Hannah Garber for her contribution to this article. Should you have any question, contact Matthew Care. Previous Next Contact

News WCM Wins Dismissal Involving Overseas Trip Sponsored By Charitable/Religious Organization (NY) June 5, 2017 < Back Share to: Senior Partner Paul Clark and Associate Peter Luccarelli III successfully convinced the Appellate Division, First Department to reverse a New York County trial court’s decision denying our client’s motion for summary judgment in an alleged sexual assault case. Lerner involved a claim of a 19 year old participant in an overseas trip by our client, a charitable and religious organization. At the end of the day’s sponsored activities, plaintiff and several other trip participants, all of whom were of legal drinking age, retired to the hotel bar. At the hotel bar, plaintiff met, and later left with other male hotel guests who were not members of the trip. Hotel personnel later found plaintiff disoriented in a hallway, and the investigating officers determined that she may have been sexually assaulted and possibly drugged by her assailants. Plaintiff filed suit against our client for allegedly failing to properly supervise her and prevent her assault at the Hotel after all sponsored activities were over. We moved for summary judgment on the basis that there was no duty to supervise an adult who drank in a hotel bar not owned, maintained, or controlled by our client. We further argued that any duty of care owed by our client to plaintiff was severed by the acts of the criminal third-parties who were unknown to our client. The trial court initially denied our motion on the basis that our client failed to prevent plaintiff from drinking excessively. On appeal, the First Department unanimously reversed the trial court order and granted our motion for summary judgment. The First Department held that even assuming a duty to prevent an adult plaintiff from drinking excessively, there was nothing our client could have done to prevent plaintiff’s alleged assailants from perpetrating an unforeseeable—and unfortunate—criminal act against her. If you have any questions about this post, please email Paul at pclark@wcmlaw.com . Previous Next Contact

News Don’t Look To Lyft For Recovery For Driver’s Sexual Misconduct (NY) August 11, 2023 < Back Share to: When bringing a cause of action based on the theory of respondeat superior, New York courts have determined that “a sexual assault perpetrated by an employee is not in furtherance of an employer's business and is a clear departure from the scope of employment, having been committed for wholly personal motives." Recently, in Browne v Lyft, Inc., such a circumstance was before the Court with the underlying injury occurring during a Lyft ride on October 12, 2018. The infant plaintiff was being driven by defendant Narinderjit Singh when, during the course of the ride, Singh allegedly unbuckled or unzipped his pants and began masturbating. Singh ceased doing so only when noticing that he was being recorded on the infant plaintiff’s cell phone. In addition to bringing an action against Singh, plaintiff commenced an action against Lyft alleging that Lyft was vicariously liable for Singh's acts under the doctrine of respondeat superior. In reversing the lower court’s decision, the Appellate Division granted Lyft. Inc.’s motion to dismiss the complaint pursuant to CPLR 3211(a)(7). The Court based this decision on the idea that, while the drivers tortious act occurred during the course of his employment with Lyft, it was not an act that was done in furtherance of Lyft’s business and the scope of Singh’s employment. In giving texture to scope of employment, the Court opined that employee actions fall within the scope of employment where the purpose of such actions is to further the employer's interest or business. According to the Appellate Court, “where an employee's actions are taken for wholly personal reasons, which are not job related, the challenged conduct cannot be said to fall within the scope of employment." Singh’s conduct deviated from his duties as a Lyft driver and done for personal motives. Therefore, the Court reasoned, the sexual misconduct could not be said to be within the scope of employment and granted the branch of Lyft's motion dismissing the vicarious liability cause of action. Thanks to Rebecca Pasternak for her contribution to this article. Should you have any questions, contact John Diffley. Previous Next Contact

News Comparative Negligence Crushes Plaintiff’s Labor Law §241(6) Claims (NY) January 12, 2017 < Back Share to:   In Cardenas v 110127 Cabrini Apts. Corp., 2016 NY Slip Op 08835 (2d Dept. 2016), plaintiff was injured when the ladder he was using became unlocked, causing him to fall and sustain injuries. Plaintiff claimed that he notified his employer of the problem prior to the accident but was told to continue using the ladder anyway. Plaintiff commenced suit against the building owner and managing agent as all claims against his employer were barred by the Workers Compensation law. All parties moved for summary judgment. The lower Court granted plaintiff’s motion in its entirety and denied the defendants motions. On appeal, the Court held that plaintiff’s continued usage of the ladder, despite having knowledge of a defect, created a question of fact as to plaintiff’s comparative negligence. The Court determined that since plaintiff failed to meet his burden in showing that he was free from comparative negligence, that the defendants motions as to Labor Law §241(6)should have been granted and reversed the lower court’s decision. Though Labor Law §240 was still an issue in this case, the Court has shown that plaintiff must prove that he was free from fault to succeed under Labor Law §241(6) and that not all Labor Law provisions are slam dunks for plaintiffs. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. 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 PA Superior Court holds that civil jury trial requires 12 jurors. September 21, 2007 < Back Share to: Under Rule 1007.1(c), 12 jurors are mandated unless a fewer number is consented to, 10 of whom must agree on the verdict. An 8 member jury requires 7/8 for a verdict. http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1189760565245 Previous Next Contact

News Renewal Application Creates No Obligation for Coverage May 19, 2017 < Back Share to: “He who represents himself has a fool for a client” - a saying often attributed to Abraham Lincoln, and just last week apparently co-signed by the Appellate Division of the New Jersey Superior Court in Sicari v Hartford Insurance Company of the Midwest. The Plaintiff attorney appeared pro se in the action. He obtained insurance through Hartford for 2010-2011 to cover his law practice, including coverage for general liability, business property liability, and lawyer’s professional liability. He paid over $2,000 in premiums. In May 2011, Hartford sent Plaintiff a letter advising that they were “no longer writing lawyer’s professional liability coverage.” Plaintiff testified he never received Hartford’s notice. In June 2011, Plaintiff sent Hartford a renewal application for lawyer’s professional liability coverage, to which he received no response. Hartford then issued insurance policies to Plaintiff for the years 2011-2012, and 2012-2013. These policies did not contain lawyer’s professional liability coverage, a fact the Court noted was suggested by a drastic reduction in premiums. In July 2013, Plaintiff found himself the subject of a potential malpractice claim, and only then did he “discover” he no longer had professional liability coverage. His suit against Hartford sought retroactive coverage based on Hartford’s failure to notify him of the decrease in coverage, and a contractual obligation to provide coverage ostensibly triggered by his renewal application and Hartford’s failure to adequately respond to same. The Court was unmoved by Plaintiff’s arguments, noting “an insured is chargeable with knowledge of the contents of a policy.” Although the case represents a confirmed victory for Hartford, the Court provided one bit of practical advice to insurance providers: when in receipt of a renewal application, “the better practice would [be] to notify the [insured] or the broker” that the coverage requested will not be renewed or is no longer offered. Thanks to Vivian Turetsky and Christopher Soverow for their contributions to this post. Previous Next Contact

News WCM is Pleased to Announce that James W. Scott, Jr. has been Promoted to Partner July 1, 2022 < Back Share to: Effective July 1, 2022, Jim Scott, who works in our Philadelphia office, has been promoted to partner. Jim is the current President of the Pennsylvania Defense Institute and a past-President of the Philadelphia Association of Defense Counsel. As such he is the only attorney ever elected president of both defense organizations. Jim is a graduate of Duke University and Temple University School of Law. With 28 years of experience, Jim focuses his practice on the defense of construction defect, construction accident, premises liability, and products liability claims. Prior to becoming an attorney, Jim was the Assistant Director of Operations with the largest fabricator/erector of structural steel in the Delaware Valley. As such, his construction defect practice has been substantially enhanced by significant real world experience. Previous Next Contact

News Police Escort in Funeral Procession Does Not Trigger "Emergency Doctrine" Defense (NY) January 10, 2019 < Back Share to: In State Farm v. County of Nassau, State Farm sought recovery for property damage as part of a subrogation claim, where its insured driver, Licata was driving when he came to a full stop at a “T” intersection. There was bumper to bumper traffic on both his right and left due to a funeral procession. After looking in both directions he started to make a left hand turn. During his turn, he was struck by a police car. Mr. Licata said that the police car did not have its siren or lights on. The police officer contradicted this account. He stated that he had his lights and sirens on because he was proceeding from the back of the funeral line to the front to help escort the vehicles through the intersection. The court was presented with the question of whether the negligence or reckless disregard standard applied. The court held that no emergency existed when the police officer was escorting the funeral procession. Therefore, the ordinary negligence standard applied. The court noted that the police officers testimony was extremely credible and that they believed him when he said he had his siren and lights on prior to the impact. Unfortunately, for him it did not matter. The takeaway from this case is a simple one. Not every time an officer has his or her lights and sirens on will it automatically be considered an emergency situation. It is going to depend on the specific facts and circumstances of the occurrence. Here, the court made it clear, a police officer escorting a funeral procession is not considered an emergency. This case also has a thorough and interesting analysis pertaining to issues of law (applicability of emergency doctrine) and issues of fact (apportionment of fault.) Thanks to Marc Schauer for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Alleged Disability Insufficient to Establish Discrimination June 17, 2009 < Back Share to: In D’Avilar v. Cerebral Palsy Assn’s of N.Y. State, the plaintiff, a direct care aide to the severely disabled, was injured as the result of a crime. Plaintiff’s injury left her unable to lift more than 10 pounds with her right arm. When plaintiff informed defendant that she required a “reasonable accommodation” as a result of her injury, defendant responded that there could be no reasonable accommodation as lifting 10 pounds was an essential prerequisite of the job. Plaintiff commenced an action under New York City Human Rights Law, claiming she had been discriminated against due to her disability. After discovery was completed, defendant moved for summary judgment based on plaintiff’s social security disability insurance application. In the application, plaintiff swore she was unable to perform the tasks of a direct care aide because among other things she was unable to lift 10 pounds and was unable to sit, stand or walk for extended periods. In plaintiff’s response to defendant’s motion to dismiss, she did not address the additional disabilities claimed in her application. The Supreme Court held that plaintiff failed to raise a triable issue of fact regarding whether she could perform the essential functions of a direct care aide based on the additional disabilities listed in her social security disability insurance application, and her failure to propose any reasonable accommodations for the additional disabilities. The Appellate Division, Second Department affirmed the lower court’s finding. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_04851.htm Previous Next Contact

News Improper Use of Mode-of-Operation Jury Charge Leads to New Trial After $1.49 Million Dollar Verdict March 22, 2024 < Back Share to: The New Jersey Appellate Division recently ordered a new liability trial after a jury issued a seven-figure verdict due to the trial court’s incorrect use of a jury charge. In Krassner v. Walmart , the plaintiff was backing out of an aisle while pulling his shopping cart and moved backwards towards a fire extinguisher. His shoulder lightly brushed the extinguisher which caused it to fall onto his foot. Plaintiff then allegedly developed Complex Regional Pain Syndrome (“CRPS”) and underwent significant treatment. The case went to trial and resulted in a verdict of $1,754,135 with the plaintiff being allocated twenty-six percent comparative negligence. The trial court molded the verdict to $1,317,299.90 and entered judgment in the amount of $1,491,562.50 including pre-judgment interest. Walmart appealed on a variety of grounds, including that the trial court improperly instructed the jury by giving Model Jury Charge (Civil), 5.20F(10) “Notice Not Required Under Certain Circumstances,” (rev. Nov. 2022), also known as the “mode-of-operation” charge. This charge instructed the jury to impose liability where a hazardous condition is likely to result from the particular manner in which a defendant’s business is conducted and defendant failed to take reasonable measures to prevent, discover or correct the hazardous condition, even if the defendant did not have actual or constructive notice of the dangerous condition. The Appellate Division reviewed the jury instruction under a two-step process. First, the Court must determine if an error actually occurred in issuing the instruction. Second, the Court examined whether the error affected the trial result. In applying this test, the Court recognized that the trial court gave the mode-of-operation charge along with the standard notice and constructive notice charges, over Walmart’s objection. However, the Court found that the accident did not take place in a service setting and therefore there was no basis to apply the mode-of-operation charge. The Court also found that by instructing the jury with this charge, the trial court absolved plaintiff of his burden to prove notice or constructive notice. Because the charge was inapplicable, and negated plaintiff’s need to prove notice, the Court remanded the case for a new trial on liability. However, the Court also rejected Walmart’s challenge as to the amount awarded to the plaintiff and affirmed the jury’s verdict as to damages. The Krassner decision highlights the importance of providing juries with correct instructions and jury charges and in making timely objections when courts fail to do so. The failure to properly instruct a jury could provide significant grounds for an appeal. Krassner v. Walmart .pdf Download PDF • 237KB Previous Next Contact

News Pennsylvania Court Finds Stacked UIM Coverage June 12, 2017 < Back Share to: The Pennsylvania Superior Court recently held stacked coverage is permitted under a policy, when the insurer failed to obtain an executed underinsured motorist (UIM) waiver when a new vehicle was added to the insureds’ policy. In Pergolese v. The Standard Fire Ins. Co., the insureds obtained an insurance policy from their insurer. At the time the insureds originally obtained this policy, they executed a waiver of stacked UIM benefits in connection with the four vehicles being insured by the policy. Several years later, the insureds removed one of their vehicles from the policy. Two months later, the insureds requested coverage for a newly purchased vehicle. The newly purchased vehicle was reflected on the policy with an amendment to the policy’s declarations page. No UIM waiver was executed at the time this new vehicle was added to the policy. Subsequently, the insureds were injured in a motor vehicle accident and sought stacked UIM coverage under the policy. Cross-motions for summary judgment were filed in the lower court. On appeal, the Superior Court was asked to determine whether the insureds were entitled to stacked coverage under the policy because of the insurer’s failure to execute a new waiver. In analyzing this issue, the Superior Court noted the Pennsylvania Supreme Court had previously held the addition of a new vehicle constituted a purchase under a policy, which required a new stacking waiver. Conversely, the addition of a vehicle through a policy’s after-acquired clause did not require a new waiver. As such, the Superior Court had to determine whether the vehicle added to the policy qualified as a new purchase. Looking to the facts, the Superior Court reasoned since the insureds’ new vehicle was added to their policy through an amendment to their declarations page, the new vehicle constituted a purchase under the policy. As such, under Pennsylvania law, a new waiver had been required. Thus, since there was no new waiver, the insureds were entitled to stacked coverage under the policy. This case illustrates the importance of clearly establishing whether a vehicle is being added as a new purchase under a policy, as merely amending a policy’ declarations page may unintentionally result in stacked UIM coverage being provided under a policy. Thanks to Colleen Hayes for her contribution to this post.           Previous Next Contact