Wade Clark Mulcahy LLP

News Plaintiff’s Claim Against Movie Theater Flops at Box Office (NJ) March 8, 2019 < Back Share to: Anyone who has gone to the movie theater to catch the latest flick knows to tread carefully when exiting the theater. No matter how many ushers and cleaning crew are available, it’s a challenge to keep the floors completely free of any loose popcorn, snacks, or general debris in between movie showings. In Frankel v. Edgewater Multiplex Cinemas, et. al., plaintiff filed a claim seeking damages for injuries sustained after a slip and fall in defendant’s movie theater. It was a crowded night at the theater, so plaintiff decided to sit in the dreaded first seat of the first row which was adjacent to an emergency exit door. When the movie ended, plaintiff attempted to exit towards the lobby, when he slipped and fell into the metal bar of the emergency exit door suffering a crush avulsion and laceration to his forehead. Plaintiff testified that he had seen “litter” when he first sat down in the theater before the movie began, but “paid it no mind.” However, plaintiff was unable to identify what he had fallen on at the time of the accident. The defendant indicated that not only did the theater have ushers that would clean the theaters between movie showings, a “breach person” is responsible for inspecting auditoriums each hour to check sound levels, lighting levels, cell phones, talking patrons, or any items posing a tripping hazard. The theater showed evidence that the breach person had inspected the theater on an hourly basis, including two inspections which took place approximately half an hour before plaintiff’s accident. The appellate court found that although there is a duty of care of business owners to eliminate dangerous conditions and keep the premises reasonably safe, plaintiff failed to show that defendant had actual or constructive knowledge of the dangerous condition that caused the accident. Plaintiff could not identify what he had slipped on, and therefore could not establish that defendants were aware of the condition that caused plaintiff to fall. As such, the appellate court affirmed the trial court’s decision and affirmed defendant’s dismissal from the lawsuit. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Duty to Defend Triggered with a “reasonable possibility” of Coverage (NY) October 14, 2022 < Back Share to: The Appellate Division (4th Dep’t) recently determined that even where a complaint does not include specific claims or allegations bringing it within the scope of a policy’s coverage, an insurer’s duty to defend may still be triggered if the complaint suggests a “reasonable possibility” that the claims may fall within the scope of the policy. In Main St. Am. Assurance Co. v. Merchants Mut. Ins. Co., the Court addressed this issue in a case involving a plaintiff who was injured during the course of his work as a subcontractor on a construction project. The subcontractor obtained insurance through Merchants Mutual Insurance Company for the contractor’s benefit. The policy with Merchants Mutual provided coverage to the contractor, but “only with respect to liability for ‘bodily injury’ . . . caused, in whole or in part, by . . . [insured’s] acts or omissions.” Merchants Mutual argued it did not have a duty to defend the contractor because the complaint alleged Labor Law violations on the part of the contractor, and not negligence by the subcontractor, as contemplated by the policy. The Appellate Division disagreed with Merchants Mutual, holding that even though the underlying complaint did not allege negligence by the subcontractor, it suggested a reasonable possibility that its negligence was a proximate cause of his injuries, thereby bringing the claim potentially within the policy. Accordingly, the Court held, Merchant Mutual’s duty to defend the contractor as an additional insured was triggered, despite the fact that the complaint did not actually allege that subcontractor had been negligent. This decision is somewhat troubling for insurers as it shows that a court may find a duty to defend even where the underlying complaint did not specifically include claims or allegations falling within the scope of a policy’s coverage. Thanks to Erin Gallagher for her contribution to this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News No Duty to Mind Your Beeswax! May 27, 2011 < Back Share to: In Tsakiris v. Gabriel First Corp., the plaintiff was injured by a drum of floor wax. American Wax had hired Alvaro Amato as an independent trucker to deliver the wax to a high school where the plaintiff worked. Amato picked up four wax drums from American Wax, loaded them onto his truck and drove them to the high school. While unloading, one of the drums rolled off the truck and pinned the plaintiff to a nearby dumpster. The plaintiffs' complaint against American Wax was predicated upon its alleged negligence in arranging and securing the load that was delivered to the school. The court, however, found that American Wax owed no duty to the plaintiff, and was not liable for the independent trucker's negligence over whom American Wax had no control. Accordingly, the case against American Wax was dismissed. Thanks to Cheryl Fuchs for her contribution to this post. http://scholar.google.com/scholar_case?case=13056353071263705577&q=Tsakiris+v.+Gabriel+First+Corp&hl=en&as_sdt=2,33&as_vis=1 Previous Next Contact

News Trying to Claim Your Boss is Doing Two Things At Once? Think Again. (PA) July 1, 2016 < Back Share to: On June 29, 2016 the PA Superior Court dismissed the appeal by underlying plaintiff Neidert from an order granting compulsory non-suit to underlying defendant Albert Charlie III. Neidert sued Charlie when he was injured while working at Riley’s Pub. Charlie owns the business and also owned the building where Riley’s Pub is located. Neidert sought damages on the theory that Charlie is not exempt under the Workers’ Compensation Act because he was acting in a “dual capacity” with respect to his ownership of the building. Neidert claimed that as the building owner, Charlie owed him a separate duty to ensure the building was safe. Charlie moved for summary judgement after he was served with the complaint and was denied. At trial however, Charlie made an oral motion for compulsory nonsuit, which was granted. The issue on appeal, among others, was whether the dual capacity exception applied. The Superior Court noted that this doctrine has only been applied in one case and the exception is extremely narrow and that it “does not apply where the employee’s compensable injury occurred while he was actually engaged in the performance of his job”. This case is useful in understanding truly how narrow the dual capacity exemption is interpreted. It will serve as a model for future suits and can be used to defeat such claims by plaintiffs. Thanks to Remy Cahn for her contribution to this post, and please email Brian Gibbons with any questions. Previous Next Contact

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News Happy Holidays from your Friends at Wade Clark Mulcahy LLP December 20, 2023 < Back Share to: ​ WCM would like to wish warm holiday greetings to our friends and clients across the United States, the UK and other parts of the world. We just celebrated the holiday season this past week with our WCM family, and as we take a break to celebrate with our families and friends at home, w e look forward to our continued collaboration with you all in 2024 and beyond. And one of these years, we're going to get all of our offices together (including our newly opened West Palm Beach office) for one big holiday party -- and we'll need a Nakatomi Plaza-sized venue for that. Happy Holidays! Previous Next Contact

News Bar owner criminal liability for serving intoxicated employee December 19, 2007 < Back Share to: In Supreme Court, Putnam County, a bar owner is on trial for allegedly allowing alcohol to be served to an off-duty employee directly before she drove head-on into another motorist, killing both drivers. This article covers the expert witness testimony and other evidence regarding the level of intoxication of the off-duty employee at the time of the fatal crash. http://lohud.com/apps/pbcs.dll/article?AID=/20071218/NEWS04/712180362/1023/NEWS07 Previous Next Contact

News NY 1st Dept: Plaintiff's Testimony Alone As To Lighting Insufficient To Defeat SJ November 10, 2009 < Back Share to: In Brodie v. Gibco Enterprises, Ltd., the plaintiff, a patron in the defendant’s restaurant, tripped and fell on a single step that separated the bar from the dining area. The plaintiff claimed that the lighting in the bar area was inadequate. The restaurant moved for summary judgment on the grounds that the area above the step was lit by a recessed lighting fixture in the ceiling and that the step neither was inherently dangerous nor constituted a hidden trap. The lower court granted the defendant’s motion and the plaintiff appealed. In affirming the decision, the First Department found that the plaintiff's testimony alone, without any other admissible evidence as to the sufficiency of the lighting or the inherent danger of the step could not defeat summary judgment. Thanks to Ed Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07930.htm Previous Next Contact

News WCM Is Pleased To Introduce Our 2022 Summer Associates July 7, 2022 < Back Share to: New Jersey Ryan Dame is a rising 3L at Brooklyn Law School who will graduate early in December 2022 as part of the accelerated program. Ryan is a graduate of the University of California, San Diego with a degree in political science. Prior to joining WCM, Ryan served our country as a member of the United States Marine Corp. where Ryan was a collateral duty quality assurance representative and a master training specialist. Most recently, Ryan interned with ECPAT-USA and for a civil judge in Supreme Court of the State of New York, Kings County. Steve Kaufman is a rising 3L at Cardozo School of Law and a graduate of the University of Miami where Steve earned a degree in history with a minor in entrepreneurship. Prior to joining WCM, Steve interned for a civil judge in Supreme Court of the State of New York, Suffolk County and interned with a commercial law firm with a focus on domain transfers and securities regulation. Steve also dabbled in the music industry during his undergraduate years. New York Sara Cardamone is a rising 3L at St. John’s University School of Law and a graduate of the University of Pittsburgh with a degree in communication and sociology. Prior to joining WCM, Sara interned for a civil judge in Supreme Court of the State of New York, New York County and interned with the New York State Division of Human Rights with a focus on assisting in the investigation of discrimination complaints. Andrew Henriquez is a rising 3L at St. John’s University School of Law and a graduate of Brown University with a degree in public policy and economics. Prior to joining WCM, Andrew participated in a variety of internships, including with the Office of the New York City Comptroller, Bureau of Law and Adjustment and also worked as an assistant paralegal at an immigration firm. Andrew has also volunteered with the Consumer Credit Court Observation Project and the New York City Community Emergency Response Team. Michelle Palagi is a rising 3L at Cardozo School of Law and a graduate of Baruch College with a degree in industrial/organizational psychology. Prior to joining WCM, Michelle interned with an employment law firm and the Orthodox Union and participated in a divorce mediation clinic. Michelle speaks many languages including Hebrew and Georgian. Mark Rodriguez is a rising 3L at Brooklyn Law School and a graduate of Siena College with a degree in history. Prior to joining WCM, Mark interned with a New York law firm with a focus on medical malpractice, sexual assault and personal injury cases and was a legal fellow with Touro Law Center. Mark is an avid Mets fan. Alexa Schimp is a rising 3L at St. John’s University School of Law and a graduate of The Catholic University of America with a degree in philosophy. Prior to joining WCM, Alexa was a legal extern for the Girls Scouts of America, interned with Legal Outreach and was a legal resource assistant for an intellectual property firm. Alexa is a literature buff with a focus on WWII/Holocaust history and also dabbles in experimental cooking. Brian Tully is a rising 3L at St. John’s University School of Law and a graduate of the University of Virginia. Prior to joining WCM, Brian participated in various judicial internships and externships, including with Surrogate’s Court – 10th District Nassau County and New York State Supreme Court, Nassau County. Pennsylvania Sydney Kockler is a rising 3L at Villanova University School of Law and a graduate of the University of Pittsburgh with a degree in political science and communication. Prior to joining WCM, Sydney participated in various internships and externships, including with the US Attorney’s Office for the Eastern District of Pennsylvania, the Pennsylvania Office of Attorney General, and Bravo with a focus on research-based blogs and developing social copy to accompany web posts for Facebook and Twitter. Jack McGuire is a rising 3L at Villanova University School of Law and a graduate of the University of Notre Dame with a degree in economics and minors in computing digital technology and public service. Jack also was selected for Notre Dame’s study abroad program and did a semester on Berlin, German. Jack’s vast interests include chess, juggling, basketball, soccer, badminton and volleyball. Prior to joining WCM, Jack interned with the US Bankruptcy Court for the Western District of Pennsylvania. Domenica Tomasetti is a rising 3L at Villanova University School of Law and a graduate of The Catholic University of America with a degree in political science with a minor in psychology. Prior to joining WCM, Domenica interned with one of the justices of the Delaware County Court of Common Pleas, was a legal research assistant for a Villanova professor and interned with the Office of the District Attorney in Delaware County. Domenica was also an assistant women’s basketball coach while at Catholic University. Previous Next Contact

News Cell Phone Update: Potential Liability for Texting a Driver (NJ) August 27, 2013 < Back Share to: What did we do before texting was invented? Although some people believe that it is quaint and outdated, we actually spoke to each other. Sometimes we talked by telephone or in person. Now, texting is a preferred method of communication with its own grammar, spelling and acronyms. Like any new techology, texting has a dark side. At its worst, it can distract drivers from the hazards of the road, sometime with fatal consequences. We know that a "texting driver" may have both criminal and civil liability if an accident ensues but what about someone who texts a driver who then causes a serious accident? Can the third party who sent the driver a text be liable as well? In Kubert v. Best, Kyle Best, age 18, was driving his pick-up up truck when he apparently received a text message from his 17 year old friend. Momentarily distracted by the text, he crossed the double yellow line and struck a couple riding a motorcycle, causing them both serious personal inuries. The couple sued Kyle as well as the friend who sent him the text. The lower court ruled that the texting friend had no duty to refrain from sending the text and the plaintiffs' appealed. The Appellate Division affirmed the dismissal of plaintiffs' complaint but held that a person may be liable for sending a text message to the driver of a motor vehicle only if he knows or has reason to know that the recipient will read the text while driving. In this case, plaintiffs' proof fell short of the mark so the dismissal was affirmed. But the door is now wide open to impose liability for an accident on a person not physically present in the motor vehicle if the sender of a text is aware that the receipent may receive and review the text while driving. If you have any questions, please email -- or text-- Paul at pclark@wcmlaw.com   Previous Next Contact

News Federal Court Finds That Concealing Artwork Does Not Infringe On Artists’ Rights December 3, 2021 < Back Share to: In 1993, artist Samuel Kerson painted two murals in the halls of Vermont Law School. The murals, titled “The Underground railroad, Vermont and the Fugitive Slave,” were intended to depict “the evils of slavery and the actions of abolitionists and activists in Vermont who aided slaves seeking freedom from the Underground Railroad.” Nevertheless, the law school received numerous complaints that the murals were racist and made law students uncomfortable. As a result, the law school announced plans to conceal the murals, which prompted a lawsuit by Kerson. Kerson alleged that covering the murals would violate his rights under the Visual Artists Rights Act (“VARA”), which vests artists with the right “to prevent any intentional distortion, mutilation, or other modification of the work, which would be prejudicial to his or her honor or reputation.” Kerson argued that permanently covering the murals “distorts, mutilates, or otherwise modifies” his work in violation of the act. In seeking to dismiss Kerson’s lawsuit, the law school argued that covering the murals does not violate VARA because the work would not be destroyed or modified, only removed from view. They further argued that the school should not be compelled to show art that it does not agree with. The U.S. District Court for the District of Vermont agreed with the law school, holding that covering the work does not violate Kerson’s rights under VARA. In interpreting the statute, the court held that the decision to cover the work does not amount to modification or destruction of the work. The court equated the proposed concealment with an art owner’s decision to not display artwork, which is permitted under VARA. The court stressed that the murals were merely being removed and stored in a different way, just as a work may be removed and stored by a gallery. Kerson plans to appeal the decision and the outcome of the case has potentially significant implications for artists, art galleries, private owners, and art insurers. Pending further guidance from the 2nd Circuit, the District Court’s decision impacts the VARA rights of artists and defines what owners are permitted to do with works of art. Thank you to Alexandra Deplas for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Second Department Expands Labor Law 240 to Fall from 8 Inch Platform March 21, 2016 < Back Share to: The majority in the Second Department expanded Labor Law 240 to encompass a fall from an 8-inch high platform of a prime mover (a mini forklift). In Somereve v. Plaza Construction Corp., plaintiff operated a prime mover to hoist a load of bricks onto scaffold approximately six feet high. While plaintiff was operating the machinery and placing the bricks atop the scaffold, the forklift flipped forward and plaintiff fell off the platform of the machine onto the floor. The majority found plaintiff was catapulted from the machine – he was ejected upward, hit the ceiling and was slammed to the ground. The majority found this sequence of events ‘gravity related,’ regardless of the fact that the platform from which plaintiff fell from was eight inches high. Plaintiff moved for partial summary judgment on the Labor Law § 240(1) claim prior to the completion of depositions. Plaintiff’s motion was granted on the basis the prime mover moved forward due to the force of gravity and failed to offer adequate protection to the plaintiff. The Court found that if the accident occurred because the mover or the scaffold could not support the weight of the bricks, gravity applied during the hoisting operation and plaintiff was entitled to summary judgment. The majority of the court did not require further discovery or depositions since comparative negligence was not a defense to Labor Law § 240. The dissent found the majority’s reasoning conclusory since there was no defect in the machine or the scaffold or any evidence that the mover could not support the weight of the bricks. The minority argued that the platform of the machine was not a type of elevation related risk enumerated in the statute, the fall was de minimis and plaintiff could not provide an explanation as to how his accident occurred. Plaintiff did not argue that a hoisting device should have been provided, and no evidence was offered to show that a hoisting device was even proper equipment for plaintiff to work at the time of his injuries. Further, the dissent argued there was a factual issue as to whether plaintiff’s injuries were caused solely by his own negligent operation of the machine and further discovery and depositions were necessary to determine the intricacies regarding plaintiff’s accident. The First Department has continually expanded the reach of Labor Law 240, and now we see that the Second Department is following suit. Previously the height from which a plaintiff fell could create a de minimus fall defense, but with each decision expanding Labor Law 240 application, it appears that the Appellate Divisions are chipping away at that defense. Thanks to Poonam Sethi for her contribution to this post.       Previous Next Contact