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

News Supplemental Bill of Particulars Permitted Nine Years Later (NY) June 29, 2017 < Back Share to: Last minute supplemental bills of particulars are common in personal injury cases and often result in motion practice seeking to strike the new and additional injuries alleged or permit discovery related to them. Pursuant to the CPLR §3043(b), a party may supplement the bill of particulars up to 30 days prior to trial only as to “continuing special damages and disabilities,” they may not allege new and additional injuries. The crux of this issue is whether the new injuries are related to the original injuries as to survive the statutory standard. In Khosrova v. Hampton Bays, 2017 Slip Op 05075 (2d Dept. 2017), plaintiff was assaulted by a fellow student while waiting for the bus outside of the school. Plaintiff initially alleged personal injuries including depression, insomnia, agitation, poor concentration, loneliness and tenseness with distress, stress, and psychological difficulties. Nine years later plaintiff served a supplemental bill of particulars alleging additional injuries and damages of post-traumatic stress disorder and long-term psychotherapy. Defendant’s made a motion to strike the supplemental bill of particulars claiming that it alleges new injuries and as such is actually an amended bill of particulars done without leave of court. The lower court granted the defendant’s motion. On appeal the Appellate Division overturned the lower court’s decision. The Court found that the supplemental bill of particulars alleged damages that were “continuing consequences of injuries suffered and described in the original bill of particulars rather than new, unrelated injuries.” This decision contributes to the uphill battle defendants face when presented with a supplemental bill of particulars with related, yet new, allegations on the eve of trial. This decision represents another example of a frustrating pro-plaintiff trend in New York Courts, and should be heeded by attorneys and insurers alike. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News US Supreme Court Ruling Lowers Bar For Arbitration Waivers (NY) June 17, 2022 < Back Share to: The Supreme Court of the United States recently ruled against an employer seeking to enforce an arbitration clause in the case of Morgan v. Sundance, Inc. Plaintiff Morgan worked at a Taco Bell franchise owned by defendant and signed an agreement to arbitrate any future employment disputes. However, she later filed a class action lawsuit against the defendant for alleged overtime violations. Following the action, Sundance initially filed a motion to dismiss, which was denied by the District Court, and later participated in an unsuccessful mediation with plaintiff. Defendant did seek to enforce the arbitration agreement until eight months after the lawsuit was filed, moving to stay the lawsuit and compel arbitration. Morgan’s attorneys argued that defendant had waived its right to arbitrate by litigating for an eight-month period. The District Court denied defendant’s motion, but the Eighth Circuit reversed, holding that a party waives their right to arbitration if they (1) knew of the right to arbitrate, (2) acted inconsistently with that right, and (3) prejudiced the other party by their inconsistent actions. The Eighth Circuit found that the second and third elements were not met; particularly that Morgan was not prejudiced by the delay because no discovery was conducted, and she would not need to duplicate efforts for the arbitration. Focusing on the prejudice requirement, the Supreme Court reversed and unanimously held that the lower courts cannot require a showing of prejudice to waive arbitration rights. The Court reasoned that when courts decide waivers, they typically focus on the actions of those who control the rights and not on how those actions affect the opposing party. The Court held that the Federal Arbitration Act was designed to ensure arbitration agreements are enforced like regular contracts and that the Act did not permit, or intend to create, unique rules for waivers. The Court remanded the case back to the District Court to consider the waiver without the prejudice element. The takeaway from Morgan is that a party who delays enforcing an arbitration clause in a franchise agreement or employment contract can lose the right to arbitrate and the party arguing for a waiver may not have to show prejudice from a litigation delay. Parties seeking to arbitrate such disputes should move promptly or risk losing the right to do so. Thank you to Ryan Dame for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Party Testimony Outweighs Prejudicial Effect Despite Cognitive Defects (NJ) September 28, 2018 < Back Share to: The New Jersey Supreme Court recently denied a petition for certification in Blessing v. Chiu, effectively upholding the Appellate Division’s per curiam reversal of a trial court order barring the plaintiff’s testimony pursuant to cognitive impacts. In denying the certification, the Appellate Division ruled that the trial judge’s denial of the plaintiff’s right to testify amounted to an abuse of discretion. The result shows the importance of evaluating not only deposition testimony when evaluating liability and damages exposure, but also the deponents themselves. In this case, the plaintiff (Blessing) underwent an endoscopic procedure in December 2010. The defendant (Dr. Chiu) was acting as an anesthesiologist. During the procedure, the plaintiff’s oxygen saturation rate began to decline. The oxygen saturation rate dropped again, despite the defendant performing procedures intended to alleviate airway obstructions. At some point, the plaintiff went into respiratory arrest, causing him to be deprived of oxygen for approximately eleven minutes. The plaintiff suffered cognitive defects and remains significantly compromised, requiring long-term care. At trial, plaintiff’s counsel sought to have Blessing testify regarding his inability to perceive and recall ordinary events. During an evidential hearing, the trial judge found that the plaintiff understood the meaning of taking an oath to testify, the importance of telling the truth, and the repercussions of false testimony. The judge nonetheless barred the plaintiff’s testimony, ruling that his inability to recite his age or the year would prejudice a jury over the probative value it was intended to offer. The trial ultimately resulted in a no-cause verdict against the plaintiff. On appeal, the New Jersey Superior Court Appellate Division ruled the trial judge abused his discretion in barring the plaintiff’s testimony, and reversed and remanded for a new trial. The Court reasoned that since the plaintiff was offered to testify to show the extent of his injuries relating to the alleged negligence, which would have contradicted testimony from defense witnesses to the contrary, the probative value of such testimony would have outweighed its prejudicial nature. The jury would therefore have the opportunity to hear probative testimony from a cognitively-impaired plaintiff. This case epitomizes the need to evaluate not only a deponent’s testimony, but also the deponents themselves as well as how they will appear before a jury of their peers. Sympathetic witnesses can alter the scope of an entire trial, and must be on the client’s radar when it comes to liability and damages exposure evaluations. Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto by email with any questions. Previous Next Contact

News Homeowner Could be Liable for Social Guest's Voluntary Intoxication and Death (NY) July 3, 2019 < Back Share to: Decedent and defendant were friends for 25 years, celebrating defendant’s new home, when after a night of (prescription) drugs and alcohol, the decedent drowned in defendant’s hot tub. Prior to the accident, decedent ingested a Xanax before going out to dinner with defendant. At dinner, the decedent had four beers, followed by a glass of wine and Ambien, upon returning. Approximately 30 minutes later, while in the hot tub, the decedent asked for another glass of wine. As the defendant returned inside, leaving decedent alone in the hot tub, the decedent drowned. The decedent reportedly had a blood alcohol level of .25 at the time it was analyzed. The decedent was suffering from cancer prior to her death and was taking certain medications as a result. In the case at bar, the defendant moved for an order granting summary judgment in her favor. The court established that a finding of negligence must be based on a breach of duty, a standard of conduct that a reasonable person would exercise under similar circumstances. Therefore, the issue before the Hon. Antonio I. Brandveen of the Nassau County Supreme Court was whether the defendant owed a duty of care to the decedent. Courts in New York “have never imposed a common law duty to protect a person from her own voluntary intoxication." Furthermore, New York has “refused to recognize a common law cause of action for injuries against those who provide alcoholic beverages.” As a friend, the defendant owed a moral duty to protect the decedent from her own voluntary intoxication, not a legal duty. However, the court recognized that “a landowner must act as a reasonable person in maintaining her property in a reasonably safe condition.” This duty is based on the landowner’s control over her property and, as such, being in the best position to identify and prevent harm to others. Because the decedent was a guest in the defendant’s home, the defendant was in a position to reasonably exercise supervision and control over the use of her property. Moreover, the defendant was aware that the decedent was under the influence of drugs and alcohol. Therefore, the defendant owed a duty of care to the decedent as a landowner according to the decision in Estate of De Leo v. Bauman. The defendant successfully established her prima facie case to dismiss the complaint. As a provider of alcohol, the defendant had no duty to protect the decedent from injuries resulting from her own voluntary conduct. As the burden shifted to the plaintiff, the plaintiff successfully established that an issue of fact remained as to “whether the defendant breached her duty as a landowner.” The hot tub owner’s manual stated that “the use of alcohol, drugs, or medication before or during the use of the hot tub, may lead to unconsciousness with the possibility of drowning.” The owner’s manual also stated that those “under the influence of drugs, alcohol, or medication, should not be allowed into the hot tub.” Thus, by permitting the decedent to use the hot tub, knowing she was under the influence of alcohol and drugs, an issue of fact remained as to whether the defendant breached her duty as a landowner. Because a triable issue of fact remained as to whether the defendant breached her duty as a landowner, to take reasonable steps to prevent harm to the decedent while she she was a guest on defendant’s property, the defendant’s motion for summary judgment was denied. We would expect an appeal of this decision. Check back for any further treatment of the case in the future. Previous Next Contact

News NJ Plaintiff Injured During Tour of YMCA Is Barred From Suit August 16, 2012 < Back Share to: In a recent decision, the Appellate Court upheld summary judgment based upon New Jersey's Charitable Immunity Act. In Sapia v. Hunterdon County YMCA, Sapia’s parents, who do not speak English, were interested in obtaining a membership to the local YMCA. Sapia accompanied her parents to the facility for a tour and acted as a translator on their behalf. During the tour, Sapia slipped and fell on water near a locker room, injured herself and eventually brought a negligence suit against the YMCA. The YMCA filed a motion for summary judgment based on New Jersey's Charitable Immunity Act. Under the statute, a charitable organization is immune from suit if the plaintiff is a beneficiary of the organization and the organization was engaged in its charitable works at the time when the tortious conduct occurred. The court granted summary judgment to the YMCA and Sapia filed an appeal. In her appeal, she argued that she was not a beneficiary of the YMCA since she was not interested in their membership services and that the YMCA was not engaged in the performance of its charitable objectives at the time of her fall. The Appellate Court upheld the trial court’s decision, finding that Sapia was a beneficiary of the YMCA at the time of her accident. Under the statute, the term "beneficiary" is to be broadly interpreted. In aiding her parents during their tour, Sapia was educated regarding the nature of available services offered by and the proposed goals of the YMCA. Accordingly, she was a beneficiary under the terms of the statue. Moreover, the court found that the YMCA was advancing its charitable purposes at the time of the accident. Specifically, Sapia was injured while walking a guided tour of the facility where the YMCA conducts it activities and functions. The court found that this particular function bore a substantial and direct relationship to the YMCA's general purpose. Thanks to Heather Aquino for her contribution to this post. For more information, please contact nbrown@wcmlaw.com . Previous Next Contact

News PA Appellate Courts Deny Double Recovery to Plaintiff. April 21, 2010 < Back Share to: In Pusl v Means, 982 A 2d 550 (Pa Super 2009) plaintiff was awarded $100,000 damages from the tortfeasor. Prior to trial plaintiff recovered UIM policy limits of $75,000 from State Farm. The trial court granted defendant’s post trial motion to raise the defense of set off for plaintiff’s UIM settlement of $75,000 and proceeded to mold the verdict to $25,000. On appeal, the Superior Court affirmed holding that section 1722 of the Pa MVFRL (75 Pa.C.S.A.sect 1722) was intended to bar double recovery and that plaintiff’s UIM settlement falls within the purview of that section’s first party benefits. The court also cited clear PA public policy against a person recovering twice for the same injury and rejected plaintiff’s argument that the set off violated the collateral source rule. Id at 557. The Court also noted that its holding was consistent with the equitable doctrine of subrogation, explaining that under existing law, State Farm had the right to subrogate against defendant tortfeasor in a separate action for the $75,000. paid under plaintiff’s UIM policy. The result of molding the verdict to $25,000 therefore ensures that plaintiff received the full amount of damages awarded to her by the jury, i.e. $25,000 from tortfeasor and $75,000 already recovered from State Farm. Id at 558. On March 13, 2010 the PA Supreme court denied plaintiff’s petition for allocatur. Pusl v Means NO 512 WAL 2009. http://pdf.wcmlaw.com/pdf/Superior Court Decision.pdf http://pdf.wcmlaw.com/pdf/Supreme Court Decision.pdf If you have any questions about this post, please contact Clayton Thomas at cthomas@wcmlaw.com . Previous Next Contact

News Holiday Greetings December 22, 2020 < Back Share to: With everyone working from home and in need of a “little Christmas” (whatever your persuasion), in lieu of physical holiday cards you will never see, here at Wade Clark Mulcahy, LLP – https://wcmlaw.com , we decided to try something a little different. In addition to what, on behalf of all of us and all of you, has become our annual donation to https://www.charitywater.org , which funds clean water projects in developing countries around the world, we hope you enjoy our celebration of the spirit of the holidays and the hope of a brighter new year in Twas the Night Before Trial. With continued thanks for your support and loyalty, Bob, Mike, Dennis, Nicole, Brian, Georgia, Tom, Paul, Tony, Tom, Bruce, Heather, Vivian, Debra, Colleen, Matt, Jim and Jen [su_youtube url="https://youtu.be/bFbl65RbdfA" title="Twas the Night Before Trial"] Previous Next Contact