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News Slipped not Spoiled – Appellate Division Overturns Spoliation Charge in Slip and Fall Action (NY) February 15, 2019 < Back Share to: In Sarris v Fairway Group Plainview LLC, plaintiff was allegedly injured when she slipped and fell on ice in a parking lot outside the store operated by defendant. Her counsel sent a demand to defendant to preserve “any and all video footage depicting the location of my client’s accident” and the Supreme Court ordered them to “preserve such footage of the incident, including the 24 hours preceding same”. The store had four separate security cameras. The store’s security manager testified that one camera showed plaintiff’s accident. Footage from that camera, including the ten hours preceding the accident, were preserved. The footage from the other cameras was automatically deleted after 30 days, the normal protocol for the cameras. Plaintiff moved for spoliation of evidence against defendants for deleting the other videos. The Supreme Court partially granted the motion partially, allowing for a negative inference charge to be given at trial. The Appellate Division ruled that the Supreme Court improvidently exercised its discretion and overturned the ruling. The Court held that the defendant was not on notice to preserve the other footage because it was only ordered to preserve the footage of the actual accident. The case provides a valuable lesson for all litigants. First, direct your clients to save as much as possible, if not for anything else to avoid unnecessary discovery litigation. Second, when making requests for discovery, be as specific as you are able to be. If you want all the security footage a party has, say that, don’t limit it to the accident where it occurred. Thanks to Christopher Gioia for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Take My Wife... Please! (NY) May 3, 2018 < Back Share to: The late Henny Youngman would have enjoyed the facts of Ostego Mutual v. Dinerman, (May 1, 2018), where a wife's fraudulent misrepresentation in a property damage claim nearly prejudiced her husband's, through no active fault of his own. The Appellate Division, First Department found that one of the named insureds, Mrs. Dinerman, had committed fraud related to the policy and thus was not covered. But the policy was not void as to defendant’s husband, also a named insured, simply due to the wife's fraudulent acts. However, the Court found that Mr. Dinerman failed to timely file a proof of loss and as such violated the policy provisions. Defendant, Mrs. Dinerman, was found to have violated the “Misrepresentation, Concealment and Fraud” condition of the homeowners policy issued by plaintiff when she submitted receipts for reimbursement for living expenses that she did not actually incur after a fire damaged their home. Dinerman claimed that the amount was minimal and as such it should not void the policy as to her. The Court found this argument unveiling and stated that the amount of fraudulently obtained monies is not the issue, the fact is that she violated the policy and as such it is void as to her. As for Mr. Dinerman, the Court found that his claims under the policy would withstand his wife’s fraudulent misrepresentations and the policy is not void as against him. This is an interesting position for the Court to take in light of the fact that the policy covered a shared home and would in effect be covering some loss of Dinerman even though she violated the policy. However, the court found that Mr. Dinerman also violated the policy in his own way, thus permitting plaintiff to decline coverage. Mr. Dinerman did not alert his insurance company about the damage or provide proof of loss within the prescribed time period. As such, the plaintiff insurance company had a right to decline coverage. This case presents an interesting question as to whether Mr. Dinerman would have been permitted to recover under the policy absent his failure to provide proof of loss, even with his wife’s confirmed fraudulent behavior. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News WCM Achieves Defense Verdict and Favorable Verdict in Harrisburg, PA Jury Trial October 11, 2022 < Back Share to: WCM Partner Bob Cosgrove obtained a defense verdict and favorable verdict in a four day jury trial in Harrisburg, PA. In the case of Joel and Barbara Turk v. Susquehanna Township EMS and Beth Miles, Joel Turk, a dentist, was being transported to the hospital by Susquehanna Township EMS and its EMT Beth Miles. During the course of the transport, Beth Miles lost control of the ambulance and crashed into two trees and one pole – the accident was so significant that Beth had to be cut out of the ambulance with the jaws of life. Joel Turk claimed that the accident exacerbated pre-existing back injuries that rendered him unable to return to work as a dentist and caused him more than $500,000 in past and future lost wages. His wife Beth made standard loss of consortium claims. Plaintiffs claimed that Susquehanna Township EMS was negligent in its hiring, training and supervision of Beth Miles and that Beth Miles was negligent in her operation of the ambulance. After hearing all of the evidence, the 12 person jury unanimously determined that Susquehanna Township EMS was not negligent, but found that Beth Miles was 100% negligent. The jury rejected, however, the plaintiffs’ claims that the injuries suffered in the accident were life altering. They awarded total damages of $31,165.01 – an award that included $2,804.46 in stipulated out of pocket medical expenses and $6,860.55 in stipulated incidental expenses. No money was awarded for the loss of consortium claim, $15,000 was awarded for a loss of past income and $6,500 was awarded for pain and suffering. For more information about this case or WCM’s trial practice, please contact Bob Cosgrove. Previous Next Contact

News Watch Your Step April 27, 2010 < Back Share to: In Grabowski v. Consolidated Edison Company, the plaintiff was injured when he fell from a wooden bench that was used to provide access to a work trailer. The door to the trailer was two to three feet off the ground and the seat of the bench was midway between the door and the ground. The plaintiff moved for summary judgment arguing that the defendants violated Labor Law § 240 (1) and the defendants cross-moved to dismiss the 240 (1) cause of action. The lower court granted the plaintiff's motion. On appeal the Appellate Division reversed, holding that the bench that the plaintiff fell from was used as a stairway for the trailer and did not fall within the purview of Labor Law § 240 (1). Thanks to Ed Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03277.htm Previous Next Contact

News New Trial Ordered for Prejudicial Remark by Plaintiff’s Counsel (PA) November 21, 2017 < Back Share to: On November 16, 2017, the Superior Court of Pennsylvania ordered a new trial in Buttaccio v. American Premier Underwriters, Inc. after plaintiff’s counsel made prejudicial comments and violated a preclusion order during the underlying trial. The court also decided on several other evidentiary issues. In the underlying case, plaintiff Mike Buttaccio, brought a claim against his former employers alleging occupational injuries and resulting economic damages. Buttaccio was a repairman for Penn Central and Conrail for around forty years. He alleges that his years of heavy work resulted in career-ending shoulder, knee, and carpal tunnel injuries. The jury found for Buttaccio for $600,000. The defendants appealed on the issues of: 1) should the plaintiff’s liability expert should have been excluded; 2) should a new trial be ordered since plaintiff’s counsel violated a preclusion order and made prejudicial comments; and 3) should evidence of other claims been admitted. Appellants argued that plaintiff’s ergonomics expert should have been excluded since his methods were not generally accepted in the field and he failed to objectively measure factors. In Pennsylvania, a person qualified as an expert may testify if: 1) their knowledge is beyond that of the average person; 2) their testimony will help the trier of fact; and 3) their methodology is generally accepted. Upon review, the Superior Court agreed with the trial court and found that the expert’s testimony was admissible since it was based on his decades’ worth of experience, education, and on publications from NASA, OSHA, and the Federal Railroad Administration. In addition, it found that the computer program that the expert used to measure factors was generally accepted in the field. The Superior Court did agree, however, with the appellants’ second argument that a new trial should be ordered. During trial, the court granted defendants’ motion to preclude any mention by plaintiff that there was inadequate manpower during his work. Despite this, plaintiff’s counsel made numerous statements on the record mentioning an alleged inadequate manpower. The Superior Court also granted a new trial on the basis that the trial court failed to properly instruct the jury and/or grant a mistrial when plaintiff’s counsel mentioned that two other employees were killed during a cross-examination. The court argued that this statement highly inflammatory and could serve to prejudice the jury against the defendants. This case demonstrates the importance of going into trial with an overall plan when it comes to evidence. As seen above, by properly preserving issues, whether through pre-trial or evidentiary motions or objections during trial, counsel can limit the plaintiff’s case by cutting off certain evidentiary avenues. This can then set up the case for a dismissal or for a new trial. Thus, by properly analyzing the evidence and what you think plaintiff’s counsel will try to introduce, one can set up the case for an endgame with a favorable defense verdict or dismissal. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News No Notice Means No Recovery in NY May 28, 2021 < Back Share to: In Barreto v. 750 Third Owner, LLC, 2021 NY Slip Op 02868 (1st Dept. 2021), the plaintiff slipped and fell in a commercial building’s lobby due to rainwater. Defendants argued that they had no constructive or actual notice of the defect on the floor because a record search did not show any complaints about water on the lobby floor prior to the accident. The defense further argued that a complaint made one year prior to the accident is insufficient to establish constructive notice. Further, plaintiff testified that it was sunny when she left for lunch, that it did not start raining that day until about five minutes before she reentered the building, and that she did not see the water until after she fell (see Perez v River Park Bronx Apts., Inc., 168 AD3d 465, 466 [1st Dept 2019]). Thus, the defendants could not have been charged with leaving rainwater on the lobby floor because an insufficient amount of time had passed to hold them accountable as such. A general awareness that the lobby floor could become wet during inclement weather is insufficient to raise a triable issue of fact as to whether defendants had constructive notice of the specific condition that caused plaintiff's fall (Jones v Icahn Assoc. Corp., 173 AD3d 546, 546-547 [1st Dept 2019]). The First Department is known for being plaintiff-friendly, but agreed with the defense here. This decision shows that if a property owner or tenant has shown in evidence that there were no prior warnings about a slippery or dangerous substance on its property, and if it cannot be shown that the dangerous or slippery substance was on the property for a definitive amount of time, then it will be difficult to attach constructive or actual notice of the condition to the property owner or tenant. Thanks to Raymond Gonzalez for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Falling Object: Labor Law Violation or Simple Premises Liability (NY) May 23, 2019 < Back Share to: Plaintiffs have come to rely on the strict liability imposed by Labor Law 240 to secure high settlements/verdicts. However, the case below demonstrates that not every complaint that comes in with allegations of Labor Law violations is grounds for concern. In Djuric v. City of New York, a pollution control plant that had previously sustained fire damage was undergoing renovation work. The plaintiff was employed by the steamfitting subcontractor hired to perform mechanical work in the building. While working, the plaintiff was struck in the back of the neck by a pipe saddle that came lose from an overhead pipe hanger. All of the defendants moved to dismiss the plaintiff’s Labor Law 240 and 241(6) claims. The lower court granted the motion. The First Department affirmed the decision, finding that the pipe saddle did not constitute a “falling object” under Labor Law 240 because it was not in the process of being hoisted or secured and there was no evidence that the pipe saddle fell because of the absence of a safety device. The appellate court further noted that the pipe saddle was a permanent part of the structure and that its defect was latent and, as such, the defendants could not have known of its potential condition prior to the accident. Finally, the Court held that the Industrial Code cited by the plaintiff under Labor Law section 241(6) was inapplicable because this object that fell from above was not part of the construction debris but, rather, was a fixture of the building which became dislodged. In other words, because the object that fell from above was not installed, altered, or in any way tampered with during the construction, the Court in the above case analyzed the defendants’ potential liability exposure through the lens of a premises liability action rather than scrutinizing it more strictly under the Labor Law’s guidelines. Thank you to Margaret Adamczak for her contribution to this post.   Previous Next Contact

News Insurer Sues for Unpaid Premium Based on Misrepresentations (NY) March 10, 2010 < Back Share to: Fast Lane car service applied for insurance, and represented to Liberty Mutual that it was based in Suffolk County and operated an airport limousine service. Liberty then issued a policy, and calculated the premium according to Fast Lane’s statements. Subsequently, Liberty learned that Fast Lane instead operated a “for-hire” transportation service in Brooklyn -- a much riskier venture than Liberty thought it insured. In an unusual move, Liberty filed suit in federal court for the difference in premium that it would have charged Fast Lane had it been aware of the true nature of its business. The Court, on default, agreed that Fast Lane had made both intentional and negligent misrepresentations, and awarded Liberty the $174,193.00 difference in premium, as well as pre and post-judgment interest. What we find unusual about Liberty’s strategy is that it did not move to rescind the policy based on the misrepresentations. As it recognized, a “for hire” car service is a riskier operation because its drivers are more likely to be involved in accidents -- and we wonder if any resulting lawsuits are pending. Having been awarded the additional premium, we query whether recision remains an available option. And even if it is, Liberty would simply need to return more premium to its insured (assuming the award is ever paid). If you have any questions about this post, please contact Mike Bono at mbono@wcmlaw.com . 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 Court Examines Scope of Designated Premises (NY) April 10, 2013 < Back Share to: The standard Commercial General Liability policy provides liability coverage for the “Designated Premises” set forth in the policy’s Declaration Page. Those premises are customarily identified in the application for insurance submitted by the insured as part of the underwriting process. Many CGL policies expressly limit coverage to liability arising out of the Designated Premises. What happens when the insured contracts for a major expansion of those designated premises and a construction worker is injured while erecting the new, expanded space? More to the point, is that new space considered part of the Designated Premises covered by the owner’s CGL policy? There is no liability coverage for the owner according to the Appellate Division, First Department in Seneca Insurance v. Cimran Co., Inc. In Cimran, the owner submitted an application for insurance describing the premises as a one story building occupied by a billiard hall and health spa. After the policy became effective, the owner contracted to add three additional stories to the property and, according the plaintiff’s bill of particulars, a worker was injured on the fourth place at the construction site. Reaffirming “an ancient principle of insurance law,” the First Department, in the closely decided 3-2 decision, held that the fourth floor was not part of the insured premises and therefore was not covered by the Seneca policy. The insurer reasonably relied on the description of the premises set forth in the application, so the court reasoned that there could be no real dispute or confusion that coverage was limited to the one story building and did not include the three additional stories under construction. Given the two dissents, we expect the Court of Appeals, New York’s highest court, to review the Cimran decision in the future. Of note, it is unclear from the Appellate Division decision whether the Seneca policy expressly limited coverage to the premises designated in the policy’s declaration page. If you have any questions or comments, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Not funny: NJ Supreme Court Weighs in on Offensive Jokes August 1, 2008 < Back Share to: The New Jersey Supreme Court recently held that offensive comments (intended to be humorous or otherwise) directed towards an employee's religious beliefs could create a hostile work environment. http://www.judiciary.state.nj.us/opinions/supreme/A-51%20Cutler.pdf Previous Next Contact

News High Tech Security System Shields Homeowner's Association In Assault Case (NY) September 27, 2012 < Back Share to: In Diaz v Sea Gate Assn., Inc, the plaintiffs were attacked in their home located within a private, gated community that was managed, maintained and controlled by the defendant homeowner's association. The plaintiffs alleged that inadequate security at the two entrance gates of the community allowed the assailant to enter property and commit his crime. In dismissing the plaintiff's complaint, the Appellate Division found defendant established its entitlement to summary judgment by providing a detailed description of its key card system with surveillance cameras. With this system in place, the Court inferred that the assailant did not access the building from these entrances. Thanks to Bill Kirrane for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact