Wade Clark Mulcahy LLP

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

News Hope or Speculation not Enough to Avoid Summary Judgment (NY) June 21, 2018 < Back Share to: In Brown v City of New York, the Appellate Division reserved a Supreme Court decision and corrected an often misapplied legal principle pertaining to summary judgment motion practice when discovery has not yet been completed. The plaintiff in Brown allegedly tripped and fell on a defective sidewalk abutting two homes in Brooklyn, NY, and sued the City of New York and both homeowners. Defendants Julius Holley and Vanessa Holley owned one of the abutting properties and prior to the close of discovery, the Holleys moved for summary judgment dismissing all claims against them, contending that they did not create the alleged defect or cause it to occur through a special use of the sidewalk. They also argued that they were exempt from liability under the provisions of Administrative Code of the City of New York § 7-210(b), which shifts liability for maintenance of public sidewalks to the City of New York, if the adjacent property is a “one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes.” In opposition, the City of New York and the plaintiff argued that the Holleys' motion should be denied because it was premature due to outstanding discovery. The Supreme Court agreed and denied the motion. On appeal, the Appellate Division found that the Holeys established their prima facie entitled to the protections of the NYC Administrative Code, and that they did not cause or create the condition. As to whether the motion was premature, the Appellate Division cited its long standing principle that “the mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion." Applying this standard, the court found that the argument that the Holleys' motion was premature because discovery had not taken place was without merit. Also, the decision noted that the plaintiff and the City failed to demonstrate that discovery might lead to relevant evidence as to the alleged liability of the Holleys or that facts essential to justify opposition to the subject motion were exclusively within the knowledge and control of the Holleys. As such, the trial court decision was reversed and summary judgment was granted to the Holleys. Thanks to George Parpas for his contribution to this post, and please write to Mike Bono with any questions.   Previous Next Contact

News Montgomery County Urges Affirmance Of Defense Verdict Involving Alleged Spoliation And Evidence Of Prior Accidents (PA) August 22, 2023 < Back Share to: In Kunsman, et al v. Wawa, Inc., Brian Kunsman was allegedly injured when he slipped and fell on a yellow-painted surface on a parking area at the rear of a Wawa store in Royersford, PA. Following a defense verdict at trial, Plaintiffs raised two arguments in their Motion for Post-Trial Relief: (1) that the Court erred in refusing to give the jury a spoliation instruction and instead instructed the jury on failure to produce evidence; and (2) that the Court erred in excluding evidence of other slips and falls at other Wawa stores. The Court denied both arguments and Plaintiffs appealed to the Superior Court, Judge Jeffrey S. Saltz issued a Rule 1925 statement urging that the Court affirm the jury’s verdict. During trial, the jury heard conflicting evidence as to whether a video security camera captured Kunsman’s fall. Although there was no dispute that video cameras covered some of the premises, their was conflicting evidence as to whether any of those cameras covered the rear of the parking lot where Kunsman fell. The assistant general manager, who was on duty at the time of the accident but did not witness it, testified that he had secured video of the area of the fall. By contrast, the general manager, who was not on duty at the time of the accident, testified that there were no cameras that could have captured the site of the accident. During trial, the Court directed Wawa to produce all videos from the date of the accident, but none showed the site of the accident. Plaintiffs requested a spoliation of evidence charge, but the Court denied the request and instead issued a failure to produce evidence charge. The Court instructed the jury that “When a piece of evidence is within the control of one party in a lawsuit and would be relevant and helpful to that party and that party does not satisfactorily explain why it was not produced during the trial, then you may find that the evidence would have been unfavorable to the party if it had been produced at trial. It is up to you to determine whether or not there was, in fact, video by Wawa that show the accident or its aftermath.” Judge Saltz wrote that the “most obvious problem with Plaintiffs’ argument is that the instruction given by the Court is substantially the same as the requested instruction on spoliation of evidence. Under either instruction, the jury “may find” that the evidence “would have been unfavorable” to the disposing or non-producing party. Because the jury returned a verdict finding that Wawa was not negligent, it was assumed that the jury either determined that there was never a video of the accident site or it determined that the video did exist and was not produced, but declined to draw a negative influence. Wawa had filed a Motion in Limine to preclude evidence relating to prior lawsuits against Wawa. Laura Drake, a senior general liability specialist for Wawa, testified at a deposition about a list of fourteen individuals (including Kunsman) on a list of claims in Pennsylvania prior to October 2015 where someone had allegedly slipped on the yellow traffic marking paint. Drake then clarified that the list included claims that “involved “ a painted yellow line. Drake was unable to testify to the details or circumstances of individual claims on the list. She did confirm that only one other such claim arose at the Royersford store. By the time of trial, Drake had retired from Wawa and her attendance at trial could not be obtained. Her deposition was admitted at trial. Judge Saltz granted Wawa’s Motion in Limine in part, allowing only evidence of the one other accident at the Royersford store. In doing, Judge Saltz relied on well-established standard for the admission of evidence of prior accidents: “Evidence of prior accidents involving the same instrumentality is generally relevant to show that a defect or dangerous condition existed or that the defendant had knowledge of the defect. However, this evidence is admissible only if the prior accident is sufficiently similar to the incident involving the plaintiff which occurred under sufficiently similar circumstances. The burden is on the party introducing the evidence to establish this similarity before the evidence is admitted.” Valentine v. Acme Markets, Inc. 687, A.3d 1157, 1162-1164 (Pa. Super. 1997). Here, Plaintiff did not sustain their burden of proving that the claims on Drake’s list, other that the one other accident at the Royersford store, were sufficiently similar to the Kunsman incident under sufficiently similar circumstances. Thanks to Jim Scott for his contribution to this article. Should you have questions, contact Tom Bracken.   Previous Next Contact

News No Coverage for Damages from Carbon Monoxide (PA) November 14, 2018 < Back Share to: A judge in the United States District Court Eastern District of Pennsylvania ruled that an insurance company does not have to indemnify a landlord whose tenants sued over carbon monoxide poisoning, In Foremost v. Nosam, Foremost sought declaratory judgment stating that it did not owe a duty to defend or indemnify, Nosam LLC in the state court action based on a pollution exemption in its policy. This case arose from the state court action in which plaintiff and her two children sued their Landlord and the building owner (Nosam LLC) after suffering carbon monoxide poisoning, allegedly from a faulty furnace in Sylvestre’s apartment. The malfunction in the furnace was allegedly caused by a neighboring chimney collapsing and falling into the plaintiff’s chimney. This allegedly caused a blockage in the heating unit at the plaintiff’s residence, causing the emission of carbon monoxide. Foremost disclaimed citing the policy which read “We will not pay for bodily injury or property damage…[arising out of the actual, alleged or threatened discharge, dispersal, release, escape of, or the ingestion, inhalation of absorption of pollutants.” The underlying plaintiffs later claimed that the emission was caused by an accidental fire when the heating system was converted to a gas system, which would trigger the exclusion to the policy exemption. The Court ruled, “ Although the underlying plaintiffs contend that they did not know the heating system had been converted to gas, there is no suggestion they did not knowingly and intentionally start the December 9, 2015, fire by turning on the furnace…There is no suggestion that any flames, or any part of, this controlled fire extended outside the sealed unit where it was designed to burn…Further, although the chimney collapse may have contributed to the buildup of carbon monoxide inside the residence, the unexpected collapse did not cause the fire. The fire, regardless of whether it was ignited by gas or oil, did not happen by chance or unexpectedly and was therefore not accidental. Although the buildup of carbon monoxide was accidental, it was not released by an accidental fire and the underlying plaintiff’s attempt to conflate the two requires a strained interpretation of that term." The salient distinction the Court makes is based on the carbon monoxide emission (obviously) being accidental, whereas the fire was started intentionally. Because the fire was started intentionally, Formost's policy exclusion applied, and Foremost owed no duty to defend or indemnify. Thanks to Jon Avolio for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Court Broadly Applies Pollution Exclusion To Oil and Gas Operations March 20, 2017 < Back Share to: Broad pollution exclusions may be applied to bar coverage in certain circumstances. In Hiland Partners GP Holdings, LLC, et al. v. National Union Fire Insurance Company of Pittsburgh, the Eighth Circuit broadly applied a commercial general liability’s pollution exclusion, upholding an insurer’s denial of coverage. In Hiland, an explosion occurred at a natural gas processing facility. In its declaratory judgment action, the owner and operator of the facility were seeking additional insured status under another party’s CGL policy. The CGL contained a pollution exclusion stating no coverage was provided under the policy for, damage arising out of the actual, alleged or threatened discharge of a contaminant. Contaminant was not defined by the policy. The insurer denied coverage under the policy on the basis of this exclusion. On appeal, the Eighth Circuit concluded that the exclusion barred coverage reasoning that one of the byproducts, condensate, which was produced during the processing operation, constituted a contaminate because it was flammable, volatile and explosive and had the ability to infect the environment. Accordingly, since the insured’s damages arose out of the condensate, the pollution exclusion barred coverage. This case illustrates how broadly a court could potentially interpret a policy’s pollution exclusion to bar coverage. However, not all courts may apply a policy’s pollution exclusion as broadly to bar coverage for damages stemming from operations in the oil and gas industry. As such, if an insurer intends to issue a policy to an insured, operating in the field of oil and gas, an insurer may benefit from terms, provision and/or exclusions that are more specifically tailored to the risks associated with oil and gas operations, as to avoid providing coverage for damages to which an insurer did not intend. Thanks to Colleen Hayes for her contribution to this post.       Previous Next Contact

News Attorney Client Privilege Under Siege in PA? February 24, 2011 < Back Share to: The attorney-client privilege is used to protect communications between clients and their attorneys, but a Philadelphia judge has recently ruled that it is not nearly as broad as some might think. In Kolar v. Preferred Unlimited Inc., Judge Mark Bernstein ruled that under Pennsylvania law the attorney-client privilege protects only a client’s communications to the attorney, not communications from the attorney to the client (unless they reveal the client’s communications). Although some attorney communications may be protected as attorney work-product, they are not protected as communications per se. Despite this ruling, this does not appear to be the last word on this subject in Pennsylvania and we will keep you posted of further developments in this area. Special thanks to Mendel Simon for his contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://pdf.wcmlaw.com/pdf/PA Priv.pdf * * * * * UPDATE: 2/23/11 Pennsylvania's highest court has just issued a ruling http://www.pacourts.us/OpPosting/Supreme/out/J-58-2010mo.pdf that, in Pennsylvania, "the attorney-client privilege operates in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice." This is a big development -- especially in the coverage context. Previous Next Contact

News Court Upholds Highest Damage Award for TBI Injury (NY) May 21, 2021 < Back Share to: Recently, courts have begun to uphold increasingly high damage awards for plaintiffs’ injuries indicating a change into the modern era where the cost of living and earnings have increased, reflecting the ability of defendants to pay more.   In the case of Perez v. Live Nation Worldwide, Inc., 2021 BL 134621, N.Y. App. Div. 1st Dep’t, No. 13579, April 13, 2021, a Manhattan judge reduced a $102 million jury award to $40.6 million for plaintiff’s pain and suffering. Plaintiff suffered severe brain injuries when he fell from a high scaffold-type structure while working construction at the Jones Beach concert theatre after another worker rammed the structure with a forklift. This verdict more than doubles any past pain and suffering award in New York State. While New York courts have adhered to a $10 million limit, the First Department has affirmed this $20 million verdict. The court in Perez admitted it was looking at things with a “fresh eye” in deciding to maintain the significant increase in the severe catastrophic cases with conscious pain and suffering.   The court also noted that this award is much higher than any other cases cited, including those involving similar devastating injuries. For example, in Hedges v Planned Sec. Serv. Inc., 198 AD3d 485, 488 (1st Dept 2021), plaintiff became seriously injured and was left near death when two 12 year old boys threw a shopping cart over the fourth floor railing of a shopping mall, striking her. Plaintiff brought suit against the owner of the mall and the mall security firm. In that case, the jury awarded plaintiff $29 million, reduced to $14.5 million by the trial court, for permanent structural brain damage and actual brain shrinkage and atrophy.   The concern with these high verdicts is that these will lead to more massive and unpredictable payouts which means higher insurance costs for struggling businesses. Another concern is the potential likelihood of forum shopping to Bronx and New York Counties, both served by the First Department which has effectively doubled the market value of injuries in the Bronx and Manhattan in affirming the damages od this case. Thanks to Gabriella Scarmato for her contribution to this post. Email Georgia Coats if you have any questions. Previous Next Contact

News Labor Law Protections Expand Despite Worker Ignoring Safety Instructions (NY) April 24, 2013 < Back Share to: In Vasquez v. Cohen Bros. Realty Corp., plaintiff initiated an action after her husband died while performing repair work on a drop ceiling at a building the defendant managed. The decedent was involved in replacing tiles in the drop ceiling of the loading dock. He and his co-worker used a two-man scissor lift to reach the drop ceiling. While replacing the tiles, the decedent saw that a fluorescent light was missing from the ceiling grid. He noticed the light on a nearby exhaust duct and climbed onto the guardrail of the lift to reach the light. While still on the guardrail, the decedent reinstalled the light and began to replace the ceiling tiles. He successfully replaced one tile while still standing on the guardrail, but had difficulty with the second tile. He eventually lost his balance and fell to the ground, fatally hitting his head. The plaintiff moved for partial summary judgment on her Labor Law 240(1) claims, and the defendant cross-moved arguing that the decedent was a “special employee” and that the Workers’ Compensation Law barred his claims. The court denied both motions and held that there was an issue of fact as to whether the decedent could have completed his work without leaving the lift. In reversing the denial of the plaintiff’s motion for partial summary judgment, the First Department granted plaintiff conditional summary judgment, reasoning that the plaintiff still needed to prove that he was not the defendant’s special employee, as there was an issue of fact with respect to who controlled and directed the decedent’s work. As for the 240(1) claims, the court held that the decedent was working from an elevated height to repair the ceiling and the defendant failed to provide him with an adequate safety device because apart from the lift, the defendant did not supply the workers with harnesses or safety lines. The idea that the decedent’s decision to leave the lift was the sole proximate cause of his death was rejected by the court, which noted that a simple instruction to avoid an unsafe practice (standing on guardrails) is not a sufficient substitute for providing a worker with a safety device to allow him to safely complete his work. Special thanks to Lora Gleicher for her contributions to this post. For more information, please contact Nicole Brown at nbrown@wcmlaw.com . Previous Next Contact

News School Is Not Its Student's Keeper (NY) September 5, 2013 < Back Share to: When a high school student was attacked by another student on an athletic field owned by a school district, a claim followed under the theory that the district failed to provide adequate security and negligently left gates open to the field. The assault allegedly occurred, at approximately 9:30 p.m., after a group of youths,who had been drinking alcohol, congregated on the field without permission. Although the Supreme Court, Suffolk County denied the school's summary judgment motion, the Appellate Division held that the West Islip Union Free School District made a prima facie showing of its entitlement to judgment as a matter of law. In Weisbecker v. West Islip Union Free School District, the court reasoned that the School District owed no special duty to the plaintiff. It held that the mere provision of security does not give rise to a special duty of protection. In this case, the School District established that it did not make direct assurances regarding security to the plaintiff and that he did not rely on the provision of security in deciding to congregate with others on the field. Further, the West Islip UFSD demonstrated that the failure to lock the gates accessing the field was not a proximate cause of the plaintiff's injuries, since the assault was not a foreseeable act. It is well settled that a plaintiff must prove that the public entity's negligent acts must be the proximate cause of the injury sustained as the result of a foreseeable act by a third party. This was not established by the plaintiff. Since neither theory advanced a triable issue of fact, the Appellate Division reversed the lower court and held the district was entitled to summary judgment. Special thanks to Johan Obregon for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact