Wade Clark Mulcahy LLP

News Plaintiff’s Slip and Fall on Wet Floor Goes to Jury as Summary Judgment is Denied (NY) July 29, 2021 < Back Share to: In Lopez v. 1355 Morris Ave, LLC (1st Dept. 2021), the First Department upheld a trial court’s decision to deny defendants’ motion for summary judgment. In some premises liability cases, a defendant can occasionally avoid liability if it shows that it warned the bystander of a dangerous condition, or that the bystander had knowledge of the dangerous condition prior to the accident. Here, however, plaintiff slipped and fell on a wet floor when defendants were mopping the floor at the time of the accident. Defendants moved for summary judgment arguing plaintiff knew that the floor was being mopped and knew the floor was wet prior thereto. The First Dept. in upholding denial of summary judgment, held defendants failed to establish that it cannot be held liable for the injuries plaintiff sustained because, even if they were relieved of their duty to warn her of a hazardous condition by the open and obvious nature of the wet floor, the defendants were not relieved of their duty to maintain the floor in reasonably safe condition. Moreover, an issue of fact existed because plaintiff testified that she saw the superintendent only cleaning the floor, not mopping it, and that she did not see the wet floor before she fell. Whether or not she should have seen it would remain a triable issue of fact for a jury to determine. The First Dept. was also not convinced by defendant’s arguments that plaintiff was primarily at fault because she was not paying attention or holding the handrail when walking, because plaintiff did not need to show complete absence of her own comparative fault in order to defeat defendant’s motion for summary judgment on liability. This case highlights the rigorous duty property owners are being held to keep premises free from dangerous conditions. Of course, all floors must be mopped on occasion, and a wet floor invites liability in a slip and fall accident. However, courts are making owners go further to floors safe from patron traffic with “reasonable means” perhaps such as blocking off the section of the wet floor. Property owners would be prudent in using any available means possible to keep the public safe on their premises. Thanks to Raymond Gonzalez for his contribution to this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News Amazon Can Be Liable for Third-party Sellers' Defective Products in California-Will Other States Follow? (NY) August 25, 2020 < Back Share to: Amazon has traditionally been exempt from various states' product liability laws by successfully arguing that Amazon is not a "seller" when it comes to products sold by third-parties through Amazon's website. A California Appellate Court has overturned a lower court and ruled that Amazon.com played a pivotal role in every step of a plaintiff's purchase of a replacement laptop computer battery on the online shopping website, making it potentially liable for the personal injuries caused when the battery malfunctioned. Angela Bolger sued Amazon and the Chinese-based company, Lenoge Technology, that listed itself on the website as the seller, alleging strict/negligent products liability, breach of warranty and negligent undertaking. Although Lenoge was served, it did not appear and the court entered default judgment. Bolger alleged the battery exploded several months later, and she suffered severe burns as a result. Amazon then moved for summary judgment, arguing primarily that the doctrine of strict products liability, as well as any similar tort theory, did not apply to it because it did not distribute, manufacture, or sell the product in question. It claimed its website was an “online marketplace”, and that Lenoge was the product seller, not Amazon. The trial court agreed, granted Amazon’s motion, and entered judgment accordingly. Bolger appealed, resulting in the higher court's determination that Amazon's role was more than that of just marketplace. The facts relied upon by the court may apply to other products sold on Amazon by third-party sellers because the Court found it was important that Amazon charged Bolger for the purchase, retrieved the laptop battery from its location in an Amazon warehouse, prepared the battery for shipment in Amazon-branded packaging, and sent it to Bolger. In a very fact-specific inquiry, the Court of Appeal for the Fourth Appellate District in Bolger v. Amazon.com LLC determined that Amazon could be found strictly liable for defective products offered on its website by third-party sellers like Lenoge. In the circumstances of this case, the Court of Appeal agreed with Bolger and reversed a San Diego trial court stating that: "Amazon placed itself between Lenoge and Bolger in the chain of distribution of the product at issue here. ... Under established principles of strict liability, Amazon should be held liable if a product sold through its website turns out to be defective. Strict liability here 'affords maximum protection to the injured plaintiff and works no injustice to the defendants, for they can adjust the costs of such protection between them in the course of their continuing business relationship.'" The Court declined to extend the protections of the Communications Decency Act to Amazon under these facts because Amazon's actions were at issue. The Court, in analyzing the fundamental goals of strict products liability legislation found that Amazon is a direct link in the chain of distribution, acting as a powerful intermediary between the third-party seller and the consumer. Amazon is the only member of the enterprise reasonably available to an injured consumer in some cases, it plays a substantial part in ensuring the products listed on its website are safe, it can and does exert pressure on upstream distributors (like Lenoge) to enhance safety, and it has the ability to adjust the cost of liability between itself and its third-party sellers. Under established principles of strict liability, Amazon should be held liable if a product sold through its website turns out to be defective. Online marketplaces such as Amazon may become much stricter in terms of who they allow to sell on their site, and greater product liability risks could drive up prices as they assume a greater role in the due diligence of investigating those sellers that increase risk of litigation and ultimately exposure in U.S. Courts. California's reasoning could be adopted by legislators and other state courts, such as New York, New Jersey and Pennsylvania. We will watch for future developments in strict products liability jurisprudence in our areas and keep you updated on any impact this case may have. If you have any questions, please contact Vincent Terrasi.     Previous Next Contact

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News No Notice of Defect in Escalator Defeats Plaintiff's Claim May 17, 2011 < Back Share to: Plaintiff alleged that she sustained personal injuries when the escalator she was riding suddenly began to shake, causing her to fall to the ground. Defendants, owners and lessees of the premises, argued that they had no actual or constructive notice that anything was wrong with the escalator, and were therefore entitled to summary judgment. The First Department agreed, noting that the plaintiff failed to raise a triable issue of fact as to defendants' notice of any defect. Further, plaintiff testified that she rode this particular escalator often, knew of no complaints regarding its operation, and saw no obvious and apparent problems with the escalator prior to her fall. The opinion was silent as to whether plaintiff had also brought suit against the manufacturer or installer of the allegedly defective escalator, but the Court granted the respective summary judgment motions of the lessees and owners of the premises. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03967.htm Previous Next Contact

News Greenbrier Classic Loses Hole-in-One Case, Now Sues Broker March 3, 2017 < Back Share to: One of the events at the well-known Greenbrier Classic golf tournament in West Virginia is the Hole-in-one Jackpot, where the fans seated in the grandstands win cash prizes if the golfers land a hole-in-one on the 18th hole. In order to limit their exposure, the operators of the golf tournament (Old White) obtained an insurance policy that would pay out in the event they awarded prize money. One of the conditions of the policy required that the 18th hole be at least 150 yards from the tee. During the 2015 tournament, two golfers nailed holes-in-one, and the operators paid out about $200,000 in prize money. But the insurers disclaimed coverage because the hole was only 137 yards. The organizers sued, claiming that they made it plain when they applied for coverage that the PGA was in charge of pin placement and that they would not know -- or have any control -- over the distance of the hole. Each party moved for summary judgment, and the insurers' argument was simple: that despite whatever expectation that the organizer had, the language of the policy regarding the 150 yard minimum was very clear. The Court thus ruled in favor of the insurers. But Old White has now sued their insurance brokers, claiming that the brokers were fully aware that the organizers had no control over pin placement, that the organizers were never advised about the distance limits, and that the brokers knew that Old White did not want a policy with a distance limit. WCM will continue to follow this saga, and please write to Mike Bono for more information. Previous Next Contact

News WCM Wins Third Circuit Affirmance in Civil Rights Violation Case. April 3, 2016 < Back Share to: Philadelphia Partner Bob Cosgrove and associate Colleen Hayes were awarded summary affirmance by the United States Court of Appeals for the Third Circuit. In Nona Farrar v. John McNesby, et al., the plaintiff filed a complaint in the United States District Court for the Eastern District of Pennsylvania alleging that various defendants, including our client, had conspired, over a ten year period, to deprive her of her constitutional rights. In response, we moved to dismiss the plaintiff’s complaint pursuant to Federal Rule 12(b)(6) contending that the plaintiff failed to state a claim upon which relief could be granted. The district court granted our motion and dismissed all claims against our client. Subsequently, the plaintiff appealed to the Third Circuit. In response, we filed a motion for summary affirmance contending the plaintiff’s appeal presented no substantial question and, as such, the lower court’s order should be affirmed. The Third Circuit upheld the district court’s order and dismissed all claims against our client. For more information about this post please e-mail Bob Cosgrove . Previous Next Contact

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News Burden on Defendant to Establish Collateral Source (NY) May 26, 2017 < Back Share to: Under New York law, collateral offsets are an important tool in limiting damages and preventing plaintiffs from receiving duplicative recovery in a personal injury case. But a recent decision underscored the fact that the defendant is the party who carries the burden of establishing, to a reasonable certainty, that the plaintiff will receive collateral source payments. In McKnight v. NYCTA, the Second Department addresses the burden of proof necessary for a defendant to obtain a collateral source off-set. Plaintiff Rosemary McKnight was injured when a bus she was riding to school was involved in a motor vehicle accident. She obtained a judgment in her favor, which included $190,000 for past medical expenses, $80,000 for past lost earnings, and $400,000 for future lost earnings. The defense sought to have these awards off-set under CPLR 4545, on the basis that the plaintiff was already receiving both social security benefits and workers’ compensation benefits from a 2002 work-related accident. The defense provided testimony from the plaintiff and documentary evidence showing that the plaintiff was receiving $205 a week in workers’ compensation benefits. The Court found that evidence sufficient to grant a collateral offset, and the plaintiff’s awards of past and future lost wages were reduced in kind. However, the defense provided no documentary evidence from the Social Security Administration regarding the amount or duration of plaintiff’s social security benefits. The defense did offer testimony from the plaintiff indicating that she received monthly benefits, but that testimony was inconsistent as to the amounts received. The court found this proffer of evidence insufficient, and found that the defense failed to establish with a reasonable degree of certainty that plaintiff was receiving social security benefits; therefore, no collateral source offset was granted. Thanks to John Collins for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact