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News Plumbing Roughing, Roughs Up Electrician And Triggers Labor Law §240(1) Liability February 14, 2008 < Back Share to: In Cohen v. Memorial Sloan-Kettering Cancer Center, 2008 NY Slip Op 01025, AD and New York Co. Index 110800/05, Edward Cohen, plaintiff, alleged to have sustained injury to his left knee when his left foot became ensnared between the second rung of his ladder and a nearby metal rod jutting from a wall, ultimately causing him to fall to the ground. Plaintiffs cross moved for summary judgment on their Labor Law §240(1) claim, asserting that although the ladder was not defective and allowed him to complete the task at hand, it was inadequate since it did not permit him to safely step down one rung at a time to the ground. While the trial court granted defendants' motion for summary judgment on the Labor Law §241(6) claim, it denied plaintiffs' cross motion. The Appellate Division - First Department, in a 3-2 decision, modified the lower court's decision and granted plaintiffs' cross motion since the unrefuted evidence showed that plaintiff's fall was proximately caused by his inability to descend to the floor due to the absence of a sufficient safety device. The dissent adhered to the Court of Appeals holdings in Nieves v. Five Boro A.C. & Refrig. Corp., 93 NY 2d 914 (1999) and Melber v. 6333 Main St., 91 NY2d 759 (1998) and deemed the hazard at issue wholly unrelated to the elevated risk covered by Labor Law §240(1) and that the safety equipment provided by defendants to be adequate. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_01025.htm Previous Next Contact

News Res Ispa Loquitur Inapplicable to Falling Trees / Poles (NY) April 10, 2019 < Back Share to: In Berliner v. Con Ed, Inc., Inc. the Appellate Division, First Department affirmed the trial court’s Order granting the motion of defendant Con Ed for summary judgment, declaring no liability for plaintiff’s injuries in connection with its fallen utility pole. During Superstorm Sandy, plaintiffs ventured outside to see whether fallen trees in their neighborhood could be cleared when another tree fell onto a series of utility wires causing a utility pole to snap and fall over striking plaintiffs. Con Ed was responsible for installing and maintaining the pole. Con Ed established entitlement to judgment as a matter of law by showing that it neither created nor had actual or constructive notice of a dangerous or defective condition in the utility pole. They submitted a variety of affidavits indicating that the pole complied with all applicable government and industry standards for that location and anticipated forces, but that the extreme forces created by the falling tree were excessive with respect to industry standards. To oppose Con Ed’s motion, plaintiffs also submitted affidavits with respect to the circumference of the pole and the pending superstorm, but failed to raise a triable issue. The court held that such an incident may occur absent negligence, and noted that the pole was on a public highway and not within the exclusive control of Con Ed when subjected to hurricane conditions. Additionally, they held that plaintiffs could not rely on the doctrine of res ipsa loquitur to raise an issue of fact as to negligence. This case demonstrates that despite a well-known “superstorm” and constant warnings with respect to its potential impact, success on summary judgment motion is still possible, when arguing a lack of actual or constructive notice of dangerous or defective conditions. Thanks to Nicole Lyalin for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News App. Div: Nightclub's Use Of Stanchions May Have Created Sidewalk Defect April 30, 2010 < Back Share to: In Harris v IG Greenpoint Corp., the plaintiff tripped and fell because of a claimed sidewalk defect that was approximately 15-18 inches from the curb line outside the entrance to the China Club. Although the China Club was the tenant and not statutorily responsible to repair the sidewalk, the plaintiff argued that the club used the sidewalk to allow its patrons entrance and also cordoned off a portion of the sidewalk using heavy metal stanchions. The club filed an immediate motion to dismiss for failure to state a cause of action. While the lower court granted the motion, the appellate court reversed stating that the plaintiff's allegations that the cracks emanated from the club’s nightly dragging of the stanchions raised an issue of fact as to whether the China Club created the claimed hazardous condition. Thanks to Bill Kirrane for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2010/2010_03478.htm Previous Next Contact

News Church is a 1-2 Family Dwelling Under the Labor Law's Homeowner Exception (NY) September 14, 2018 < Back Share to: In Bautista v Archdiocese of NY, Plaintiff was injured when he fell from a scaffold while repairing a detached garage associated with a church rectory used for both residential and church purposes. Against the Church, plaintiff asserted common-law negligence and claims under the scaffold law and statute requiring owners and contractors to provide reasonable and adequate protection and safety for construction workers, and the workplace safety statute applicable to owners and contractors. Plaintiff initially moved for partial summary judgment on the Labor Law § 240(1), and the Archdiocese cross-moved for summary judgment dismissing the complaint. Both motions were denied. The Archdiocese appealed. On appeal, the Appellate Division First Department reversed, granting the Archdiocese’ motion for summary judgment on Labor Law §§ 240(1) and 241(6) under the 1-2 Family Dwelling exception for “owners of one and two-family dwellings who contract for, but do not direct or control the work”. The Court held that the certificate of occupancy indicated that the record constituted a dwelling and a private garage, and that Plaintiff’s assertions that the garage was exclusively restricted to use by teachers at an elementary school owned by the church were unsupported by the record, thereby failing to raise issues of fact as to the applicability of the homeowner’s exemption. Moreover, the Archdiocese established that it did not have the authority to supervise or control the job and thus was not liable as an agent of the owner under Labor Law § 240(1) and Labor Law § 241(6). As such, the Court held that the Labor Law § 200 and common-law negligence claims should be dismissed because plaintiff's fall from scaffolding involved the means and methods of his work, which were supervised and controlled solely by his employer. Thanks to Margaret Adamczak for her contribution to this post. Previous Next Contact

News NY Federal Court Deems Misrepresentation Regarding Multiple Policies Material January 15, 2009 < Back Share to: In John Hancock Life v. Perchikov, a judge in the EDNY recently agreed with the insurer that the insured's misrepresentation in its application for coverage regarding the existence of other policies covering the risk was material and permitted recision, because the insurer would not have issued the policy without verifying the existence of additional income. Although this involved a life insurance policy, it can likely be applied in other areas where the type or amount of coverage issued is related to the value of the underlying risk. Previous Next Contact

News Pink Slime: Cause for Concern for Product Recall Underwriters? March 31, 2012 < Back Share to: Pink slime is all over the news these days. It is the derogatory term for "meat product made by processing leftover beef trimmings." In other words, it's meat filler made from leftovers with the addition of amonia. It sure doesn't sound very tasty, but it's been in use for more than 20 years. Public concerns about its safety have led some stores to offer free refunds/recalls. A claim to the insurers of those stores or suppliers cannot be far behind. It also makes you think that maybe you want to stick with lamb or chicken for Easter or Passover dinner... For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Lloyd's Rethinks Timeline for New Claims System. February 10, 2010 < Back Share to: Effective January 1, 2010, Lloyd's had implemented a pilot program in which marine, marine property and casualty reinsurance claims no longer had to go through Xchanging Claims Services, but rather could be handled by the syndicates "in-house." The program was designed to assess whether claims handling efficiency could be improved. To date, Lloyd's claims in these classes of business have been relatively low. If this pattern holds, the pilot program may need to be extended as there may be insufficient data to gauge the success of the new "in-house" claims handling model. http://www.insurancetimes.co.uk/story.asp?source=itissueNews&storycode=382705 Previous Next Contact

News EDPA Upholds An Insurer’s Choice of (Maritime) Law Clause (PA) April 16, 2021 < Back Share to: After the recent kerfuffle in the Suez Canal, it seems as though ships running ashore and maritime law are becoming common topics of conversation. Most recently, the Eastern District of Pennsylvania addressed the impact of an insurer’s choice of law provision in an insurance contract in connection with an insured seeking coverage for damages following its ship running aground. Great Lakes Insurance SE v. Raiders Retreat Realty Co. centered around a shipping vessel owned by the defendant-insured and insured by the plaintiff, with a period of coverage extending over twelve years. Throughout the coverage period, and in all the renewal documents for the policy at issue, there was a choice of law clause determining the relevant applicable law. The clause set Federal Admiralty law as governing, with New York as a backup. The insured argued, inter alia, that the choice of law clause was not enforceable and Pennsylvania law should apply because the clause was unreasonable based on the insurer’s lack of contacts with New York and, thus, enforcing the clause would contravene the public policy of Pennsylvania. Ultimately, the court disagreed. In reaching this conclusion the court first looked to the multiple business contacts the insurer maintained with New York, including maintaining an agent for service of process as well as multiple accounts, and its status as an insurer in New York. Beyond that, the court analyzed multiple precedential cases holding that choice of law clauses were not against public policy. Most notably, the court concluded that application of maritime law was appropriate, and that “public policy of a state where a case was filed cannot override the presumptive validity, under federal maritime choice-of-law principles, of a [choice of law provision] where the chosen forum has a substantial relationship to the parties or transaction.” Accordingly, this case shows that Pennsylvania courts are apt to uphold an insurance policy’s choice of law provision, and also provides some of the factors courts will look to in determining whether the chosen forum has a sufficient relationship to the parties. Thanks to Abby Wilson for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Emergency Doctrine Upheld (NY) March 27, 2019 < Back Share to: In Santana v. Metropolitan Transp. Co., the Appellate Division, First Department affirmed a Supreme Court decision involving the application of the “emergency doctrine” to excuse a defendant’s alleged negligent actions. After a near collision when a car suddenly cut off a Metropolitan Transportation Company (MTA) bus, the plaintiff filed a lawsuit in New York County Supreme Court naming The City of New York and the MTA as defendants asserting that the bus driver acted negligently by applying the brakes and turning the bus to avoid another vehicle entering into the bus’ lane. The MTA moved for summary judgment, claiming that the emergency doctrine required immediate action, and the bus driver’s reaction of pressing the brake with enough force while turning the bus slightly to prevent a collision with the car entering the bus’ lane was a reasonable response to the emergency. The plaintiff opposed the summary judgment motion, arguing that there was an issue of fact regarding the propriety of the emergency doctrine, because the car had tried to enter the bus’ lane once prior. Also, the plaintiff presented a procedural argument in opposition, claiming that the MTA’s answer did not plead the emergency doctrine as an affirmative defense. New York County Supreme Court issued a decision granting the motion, and dismissing the Complaint. On appeal, the Appellate Division addressed the application of the emergency doctrine, and affirmed the findings by the trial court. The Appellate Division found that there was no question that the bus driver did not create the emergency, or could have otherwise avoided the collusion. Due to the emergency situation, the MTA driver was required to take immediate action, and his action was an appropriate response to the emergency. Lastly, the Appellate Division found that the trial court providently exercised its discretion in determining that it would consider the emergency doctrine affirmative defense even though it was not pleaded in the MTA's Answer. Thanks to George Parpas for his contribution to this post. Previous Next Contact

News No Duty Of Care While Freezing Rain Still In The Air (PA) November 18, 2022 < Back Share to: A Pennsylvania trial court granted summary judgment in a premises liability case where the plaintiff slipped and fell during an ongoing storm of rain and freezing rain, thereby reaffirming that a property owner has no obligation to remove all of the ice from its premises while the icy precipitation continued to fall. In Nunez v. Johnson & Johnson, Henry Nunez was employed by Allied Universal as a security guard at a FedEx warehouse in Tobyhanna, Pennsylvania when he arrived for work at approximately 1:50 p.m. to begin his work shift and parked in a parking area along the roadway within the facility, behind several other vehicles. As he exited his vehicle, he slipped and fell on ice. On that date of the incident, it had been raining throughout the day with periods of freezing rain. Weather records indicate that there was freezing rain, mist, and other unknown precipitation in the immediate area from just after midnight that day until at least 2:34 p.m., which was after Nunez fell. Throughout that period of time, rain and icy rain was falling, temperatures were under the freezing mark, and icy conditions existed on roads and parking areas. Nunez himself confirmed there had been icy rain falling that day before he went to work, that it continued when he left for work at approximately 1:30 p.m., and during his drive to work. Further, when he arrived at work, the icy rain event was still ongoing. Plaintiff sued the snow and ice removal contractor (SRI), who had been actively engaged in efforts using various types or remediation machinery, including graders, plow trucks, wheel loaders and manual shoveling. SRI’s work began on the day before the loss and continued throughout the day and night of the 17th. The icy storm event was of a long duration. Based on this, the Court granted the motions for summary judgment to all Defendants. Nunez was considered a business invitee, and thus, the duty of care to a business invitee regarding conditions on the land will be breached only if: (1) the defendants know or by the exercise of reasonable care could have discovered the conditions and realized that they involved an unreasonable risk of harm to the invitee; (2) defendants should expect the plaintiff will not realize or discover the danger or will fail to protect himself from the danger; and (3) defendants fail to exercise reasonable care to protect plaintiff from the danger. Regarding snow and ice on a walkway, it is an impossible burden to require that walkways always be free and clear of ice and snow. The issue is whether or not defendants acted reasonably under the circumstances. Wentz v. Pennswood Apartments, 518 A.2d 314 (Pa. Super. 1986). Here the Court concluded that no duty of care was breached. “A landowner [or occupier of land] has no obligation to correct conditions until a reasonable time after the winter storm has ended.” Similarly, SRI, who was actively engaged in treating the icy conditions elsewhere on the property, cannot be held responsible for keeping the location where Nunez fell completely clear of ice at all times while there was an active ice storm occurring. The Court found that summary judgment was also appropriate due to the lack of proof of hills and ridges where Plaintiff fell. Under Pennsylvania’s Hills and Ridges Doctrine, where generally slippery conditions exit, a plaintiff must prove: (1) that snow and ice had accumulated in ridges and elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians; (2) that the property owner had notice, either actual or constructive, of the existence of such conditions; and (3) that it was the dangerous accumulation of snow and ice that caused the plaintiff to fall. Gilligan v. Villanova University, 584 A.2d 1005 (Pa. Super. 1991). Here, it was indisputable that generally slippery conditions existed. Nunez fell on a patch of ice by his vehicle. He described a sheet of ice from his car all the way to the building where he worked. He was unable to describe any hills or ridges that accumulated, thereby rendering summary judgment appropriate under the Hills and Ridges Doctrine. The court appropriately applied existing Pennsylvania caselaw to this case and does not alter existing obligations on landowners and contractors hired to perform premises snow removal/maintenance. Thanks to James Scott for his assistance in this post. Should you have any questions about this case, please feel free to contact Tom Bracken. 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

News 2nd Circuit Clarifies Article III Standing Based on "Increased Risk" of Identity Theft (NY) April 30, 2021 < Back Share to: Earlier this week, the Second Circuit issued a significant ruling with respect to the unauthorized disclosure of sensitive personal identifiable information (“PII”). Federal circuits have been split with respect to whether an increased risk of identity theft following a data breach, without proof of actual harm, is sufficient to confer Article III standing. The decision in McMorris v. Lopez & Assoc., officially clarifies the issue for the Second Circuit. Plaintiff-appellant Devonne McMorris commenced a class action lawsuit against defendant-appellees Carlos Lopez & Associates, LLC (“CLA”) in response to an email that a CLA employee inadvertently sent to all of CLA’s employees. This email contained the sensitive PII – i.e., Social Security numbers, home addresses, dates of birth, phone numbers, dates of hire and educational degrees – of about 130 former and current CLA workers, including McMorris. After discovering the breach, CLA emailed its current employees, but did not contact any former employees regarding the inadvertent disclosure or take any other corrective action. Plaintiffs asserted state law claims of negligence, negligence per se, as well as statutory consumer protection violations on behalf of classes in California, Florida, Texas, Maine, New Jersey and New York. The plaintiffs also claimed CLA “breached its duty to protect and safeguard [their] personal information and to take reasonable steps to contain the damage caused where such information was compromised.” Due to the PII disclosure, plaintiffs asserted they faced an imminent risk of identify theft and becoming victims of “unknown but certainly impending future crimes.” In response to the complaint, CLA moved to dismiss for, inter alia, lack of Article III standing. The United States District Court for the Southern District of New York agreed with CLA and dismissed McMorris’ claims for lack of subject-matter jurisdiction as McMorris failed to allege an injury-in-fact sufficient to confer Article III standing. McMorris appealed to the 2nd Circuit, asserting that the increased risk of identity theft confers Article III standing. The Second Circuit focused on whether the plaintiffs sufficiently alleged concrete, particularized, and actual or imminent injury. The Court considered three non-exhaustive factors: (1) whether the data at issue was comprised as a result of a targeted attack intended to obtain the plaintiffs’ data; (2) whether the plaintiffs could show some misuse of their compromised data, even if the plaintiffs have not yet experienced theft or fraud; and (3) whether the type of disclosed data subjects plaintiffs to a perpetual risk of identity theft or fraud. While the Second Circuit recognized the information CLA divulged renders plaintiffs more exposed to future identity theft or fraud, plaintiffs failed to establish "imminent injury." In addition, the Second Circuit determined the plaintiffs had no standing because they failed to show their PII was subject to a targeted data breach, or that any entity misused their PII. This decision is significant. Although the Court agreed with the district court’s holding that McMorris failed to establish an injury in fact, the Court held that Article III injury in fact standing only requires proof of a substantial risk of future identity theft or fraud. A substantial risk may be sufficient to establish Article III standing, even if the plaintiff has not been a victim of identity theft or fraud. The 2nd Circuit's thorough decision gives insight to future litigants regarding the required legal standard in this jurisdiction. Thanks to Lauren Berenbaum for her contribution to this post. Please email Brian Gibbons with any questions about the ruling, or WCM’s data privacy and cyber-liability practice. Previous Next Contact