News NY App. Div. Affirms Denial of Defendant SJ in Gym Class Accident January 25, 2011 < Back Share to: In Bloomfield v. Jericho Union Free School District, the Second Department further demonstrated the importance of proving both the lack of notice element and the open and obvious element in a premises liability case. In Bloomfield, plaintiff, a high school student, was injured when her foot got stuck in the tear of a high jump mat during gym class. Affirming the lower court’s denial of defendant’s motion for summary judgment, the Second Department specifically found that defendant did not prove they did not have prior notice of the condition, and moreover did not prove such condition was open and obvious. Plaintiff also brought negligent supervision claims, which the lower court dismissed. The Second Department, however, reversed the lower courts dismissal. It determined that defendant had failed to make a prima facie showing that it adequately supervised plaintiff and/or that such inadequate supervision was not a proximate cause of plaintiff’s accident. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00341.htm Previous Next Contact

News Contractor's Trucks Traversing over a Sidewalk Creates Issue of Fact that Defeats Motion to Dismiss. July 23, 2010 < Back Share to: In Cordova v Union Turnpike Dev. Corp., the plaintiff tripped and fell due to a hole in a sidewalk near an area where construction work was taking place. She sued the parties performing the construction work. The defendants were granted summary judgment by the trial court on the grounds that they did not create the alleged defect. In a short decision, the Appellate Division reversed. Notably, the court relied on the plaintiff's claim that the hole could have been created when heavy machines and trucks traversed the subject sidewalk to gain access to the construction site. Since the defendant did not establish they did not create the hole with their equipment, they failed to meet their initial burden of establishing entitlement to summary judgment. Special thanks to Bill Kirrane for his contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.nycourts.gov/reporter/3dseries/2010/2010_06155.htm Previous Next Contact

News It’s Not Me; It’s You (PA) August 8, 2019 < Back Share to: In Slavinski v. Gallatz, a Pennsylvania court ruled on a landowner’s duty to correct or warn of an artificial condition on an adjacent property. Plaintiff was walking in an alleyway owned by a neighbor, when she fell forward injuring herself on a protruding grave marker embedded in the ground. Subsequently, the plaintiff commenced suit against, inter alia, the neighbor as well as the church that operated the nearby cemetery. The church and the cemetery moved for summary judgment to dismiss the plaintiff’s complaint. In response, the plaintiff argued, that while she did not injure herself on the church or cemetery’s property, the church and cemetery had a duty to prevent debris from the cemetery from being thrown onto any adjacent property, including, but not limited to the alleyway. In analyzing whether to grant the defendants’ motion for summary judgment, the court reasoned the existence of a dangerous condition or happening was not sufficient to establish liability. Further, there was no Pennsylvania law that existed holding that a landowner’s duty extended to correcting or warning of a defective artificial condition on a neighboring property. Moreover, no discovery produced evidenced the fact that the church or the cemetery was aware that their actions, in, e.g., removing debris from their property, had resulted in the claimed defective condition in the alleyway. Accordingly, the court concluded that the defendants were entitled to summary judgment. Thus, this case offers additional clarity regarding the scope of a landowner’s duties and obligations. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Happy St. Patrick's Day from WCM! March 16, 2018 < Back Share to: With St. Patrick's Day falling on a Saturday this year (a rare, and always much anticipated occurrence) parade preparations in New York City will be underway shortly. If you've never attended the NYC St. Patrick's Day Parade, it's very impressive, lasting 5+ hours, with literally thousands of bagpipes and Irish dancers. Always a memorable experience. And considering the overflow of the parade-goers up Fifth Avenue in Manhattan, combined with a full slate of NCAA Basketball "March Madness" games on Saturday, it's not a bad day to be a pub owner in New York City! I recall an old Irish saying that my grandfather (from County Mayo) used to quote -- "The Irish are a race of people who don't know what they want, and are prepared to fight to the death to get it." ((I always liked that one.) So with that in mind, enjoy the festivities, and be safe. New posts and articles will follow next week. Previous Next Contact

News Chutes and Falling Ladders: Superior Court Delves into the Appropriate Venue for a Strict Products Liability Case (PA) November 13, 2020 < Back Share to: In Kornfeind v. New Werner Holdings Co., Inc. William Kornfeind (“plaintiff”) was standing on a ladder when it slid downward, causing plaintiff to fall and sustain severe injuries. Plaintiff brought claims of strict products liability and negligence against New Werner, the designer of the ladder. Defendant filed a motion for summary judgment after discovery concluded. New Werner claimed that Pennsylvania was an improper venue because plaintiff was injured in Illinois. The trial court denied the motion and defendant appealed. The Superior Court affirmed the trial court’s ruling, noting that while plaintiff is a resident of Illinois, purchased the ladder in Illinois, and was injured in Illinois, his claims surround the design of the ladder, which allegedly occurred in Pennsylvania. Thus, venue was proper in Pennsylvania for this matter. This case reveals that when defending a strict products liability case we should look to the essence of plaintiff’s claims to determine the appropriate venue for an action. Thanks to Nicholas Wight for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News NY Appellate Court Affirms “Reasonably Safe” Requirement of Property Owner in Dismissal of Premises Case October 14, 2022 < Back Share to: In Shuttleworth v. Saint Margaret's R.C. Church in Middle Village, 2022 NY Slip Op 05730, (2nd Dept. 2022), plaintiff slipped and fell on a metal drainage grating while it was raining. The defendant property owner moved for summary judgment arguing that the condition was not defective at the time of the incident. The trial court denied defendant’s motion but the Second Department overturned the decision, granting dismissal of all claims. “A property owner has a duty to maintain his or her premises in a reasonably safe condition (see Basso v Miller, 40 N.Y.2d 233, 241). "In order for a landowner to be liable in tort to a plaintiff who is injured as a result of a dangerous or defective condition upon the landowner's property, the plaintiff must establish, among other things, that a dangerous or defective condition actually existed" (Riley v Lake Rd. Condominiums, 47 A.D.3d 697, 698). The appellate court concluded defendant satisfied the prima facie burden for summary dismissal by showing the metal drainage gate was not in violation of any applicable code, thus showing that the property owner kept the promises in a reasonably safe condition. The fact that the metal grating was wet from rain did not make it inherently dangerous. Plaintiff’s opposition failed to put any triable issues of fact and plaintiff’s expert submitted a report that the parking lot was defectively designed but failed to include any violations or industry-wide standards or accepted standards of parking lot design/construction. This case highlights an important tenet of premises liability – a wet condition on a premises is not inherently dangerous so long as it does not violate any building codes or widely accepted standards for construction. A viable defense for property owners in premises liability cases is showing you complied with all codes and statutes to protect public patrons, the location was reasonably safe and any condition that existed was not foreseeable. Thanks to Ray Gonzalez for his contribution to this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Is A Tattoo “Therapeutic or Cosmetic” for Coverage Purposes? November 17, 2023 < Back Share to: That is the argument of Scottsdale Insurance Company in Scottsdale Insurance Co. v. Isabell et al , which is currently pending, awaiting a decision . Scottsdale is seeking declaratory judgement that a tattoo shop in Orlando Florida is owed no coverage for a lawsuit claiming that a patron got an infection from his tattoo because the therapeutic or cosmetic services exclusion in the shop’s commercial general liability policy bars coverage. William Isabell sued Severe Ink in March 2023 in Florida’s Orange County Circuit Court. Isabell claims that he received a tattoo on his right wrist in January 2023 at Ninth Paradigm tattoo shop, owned by Severe Ink. After getting the tattoo, Isabell fell “gravely ill” with an infection and suffered from sepsis and pneumonia due to the infection. Isabell claims Severe Ink/Ninth Paradigm failed to maintain a safe and sterile environment and created an “unreasonably dangerous condition” to the public by failing to inspect the tattoo shop for cleanliness and ensuring its workers followed all requirements. Scottsdale Insurance company issued Severe Ink its commercial general liability policy. The policy contains an exclusion for “specified therapeutic or cosmetic services.” The exclusion states that coverage does not apply to bodily injury "arising out of the rendering of or failure to render any service, treatment, advice or instruction for the purpose of appearance or skin enhancement, hair removal or replacement, or personal grooming or therapy." The exclusion also applies to claims alleging negligent supervision, employment or training if the occurrence that causes the bodily injury or personal and advertising injury "involved the rendering of or failure to render any service, treatment, advice or instruction for the purpose of appearance or skin enhancement, hair removal or replacement, or personal grooming or therapy." Scottsdale Insurance is arguing that the exclusion precludes coverage and is seeking a declaration that it has no duty to defend or indemnify Severe Ink in the underlying action – whether they prevail hinges on whether tattoo services are considered a service or treatment “for the purpose of appearance or skin enhancement.” We will keep an eye on this one, currently being litigated in Florida. Scottsdale v. Isabell .pdf Download PDF • 155KB Previous Next Contact

News Litigation Financing: A Trap For The Unwary? April 11, 2012 < Back Share to: Ever wonder how some plaintiff’s attorneys fund their cases or smooth out their cash flow? In a recent case, it seems that one method is to obtain funding from outside sources secured on the estimated value of the firm’s cases, that is, on the settlement or verdict value of each case. According to Kelly, Grossman & Flanagan, LLP v. Quick Cash, Inc., the prevailing rate of interest in these transactions is substantial ranging from 3.5% to 3.99% compounded monthly or an annual rate of nearly 40%! Like many states, New York makes it a criminal offense to charge rates of interest on a loan beyond certain stated percentages. In Kelly, the plaintiffs argued that the arrangement that resulted in funding of over $1,200,000 was, in fact, a loan subject to New York’s usury laws. In contrast, the defendants argued that the usury laws only apply to “loans,” and not to transactions that involve interest to be paid based on a contingency not in the control of the debtor. In this case, the finance company contended that the contingency of whether a case settled or a jury returned a favorable verdict was not the law firm’s control and therefore was not a “loan.” In Kelly, it was bad news for the lawyers: the court held that the transaction was not a loan but an agreement that created an ownership interest in the proceeds of the lawsuits being prosecuted by the plaintiffs on behalf of their clients. The Kelly case is a fascinating insider’s view of the recent trend of third party litigation financing where either law firms or their clients are advanced funds in exchange for a piece of the action on the tail end when the case settles or a favorable plaintiff’s verdict is obtained. Unfortunately, the price of admission is steep, with interest rates of near 40%. These arrangements have ramifications for the defendants in these financed cases because the plaintiff’s settlement demands now must include not only the amount of outstanding medical bills or lost wages, but any sums owed to the third party financing companies. If you have any questions or comments about this post, please contact Paul at pclark@wcmlaw.com Previous Next Contact

News EDPA's Chief Judge -- Assault Cloaked as Negligence Is Still Assault. November 14, 2007 < Back Share to: In the case of Essex Insurance Co. v. RMJC Inc., Essex disclaimed indemnity coverage for a claim arising out of an assault committed by the insured's bouncer. The insured argued that indemnity coverage was mandated because the underlying plaintiff was proceeding exclusively on a negligence and not assault theory. Chief Judge Bartle disagreed and held that the assault and battery exclusion barred indemnity coverage. http://www.law.com/jsp/pa/PubArticleFriendlyPA.jsp?id=1194948244072 Previous Next Contact

News Stair Collapse Prompts SJ Against Owner in Premises Action (NY)) March 8, 2018 < Back Share to: In Conklin v 500 512 Seventh Ave, the Appellate Division, First Department unanimously granted plaintiff’s motion for summary judgment on the issue of liability. The plaintiff, a handyman employed by the defendant’s managing agent, was injured when he fell about 20 feet to a cement floor after the metal landing of a metal staircase in the sub-basement of defendant’s building collapsed under him. The court found that plaintiff established a prima facie case that defendant had constructive notice of the defective condition of the stairs. Plaintiff submitted photographs of the stairs covered in rust as well as evidence that the defendant had not inspected the staircase in the 27 years preceding the accident. The court made a point to note that stairs “do not ordinarily collapse absent negligence, and plaintiff did not contribute to the happening of the accident.” Because this accident could not have been caused by the plaintiff’s actions and in combination with the visible evidence of the defective condition over the course of several years, the court was persuaded to unanimously find for the plaintiff on the issue of liability. The Court does not opine on whether the "handyman" plaintiff was asked to repair the subject staircase, but we suspect not, since the Court likely would have address as much if defendant opposed on those grounds. This case serves as a cautionary regarding obvious defects especially in the context of accidents where there is no reasonable argument of comparative fault. Thanks to Alicia Massidas for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Contract Terms Trump Specifications In Labor Law Personal Injury Action March 30, 2012 < Back Share to: In Fraser v. Pace Plumbing Corp., the appellate court affirmed the lower court’s decision to deny Pace Plumbing Corp.’s summary judgment motion. Fraser was injured when the scaffold on which he was standing slipped into an open, uncovered hole in the concrete floor causing him to tip over. The contract between Pace and the construction manager required that Pace “cut, fit, patch and protect its work.” Pace argued that the specifications portion of the contract provided that the openings left in the floor would be patched up “by others.” This argument failed because the agreement provided that in the event of a conflict, the agreement would take priority over the specifications. Further, the court held that in light of Pace's obligations set forth by the contract, there still remained triable issues of fact as to whether Pace was a "statutory agent" of the construction manager, and as such may be liable under Labor Law sections 200, 240(1) and 241(6). To be treated as a statutory agent, the subcontractor must have been "delegated the supervision and control either over the specific work area involved or the work which gave rise to the injury." http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02407.htm Thanks to Sandy Debbas for her contribution to this post. Previous Next Contact

News Give Me Shelter August 16, 2024 < Back Share to: After his wife died from an allergic reaction to food served at a Disney restaurant in Orlando, Florida, plaintiff brought a wrongful death suit in the Florida circuit court. Disney, pointing to an arbitration clause agreed to by plaintiff when signing up for the Disney+ streaming service several years earlier, asked the court to dismiss the lawsuit and compel arbitration. Disney’s motion is set for hearing on October 2, 2024. For more, see: www.npr.org Disney wants a wrongful death lawsuit thrown out because the plaintiff had Disney+ Jeffrey Piccolo's wife died of an allergic reaction after eating at a Disney World restaurant. Disney says his claims must be arbitrated out of court based on the terms of his years-old Disney+ trial. Postscript: Disney opted to withdraw its arbitration clause argument shortly after our initial post: https://www.cnn.com/2024/08/19/business/disney-arbitration-wrongful-death-lawsuit-intl-hnk/index.html Previous Next Chip M-P George Chip M-P George Of Counsel +1 786 636 1541 cgeorge@wcmlaw.com Contact