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News Are Experts Needed for Res Ipsa Cases? February 7, 2013 < Back Share to: The New Jersey Appellate Division recently handed down a decision that clarifies when expert testimony is required in res ipsa loquitur cases, and when the doctrine may be applied. In certain cases where the cause of an accident is not entirely clear, this doctrine allows a permissive presumption that a defendant breached a duty of care owed to a plaintiff based upon how an accident occurred, provided certain required factors are present. The jury is then free to accept or reject the presumption. In Mayer v. Once Upon A Rose, Inc., the plaintiff, a caterer, claimed that he had been injured while setting up for an engagement party. The defendant, an employee of a florist who was also setting up a display for the engagement party, was carrying a heavy vase that the florist had used on several previous occasions. The plaintiff and defendant set forth different versions of how the defendant was holding the vase at the time the accident occurred. However, the uncontroverted evidence was that the vase shattered while the defendant was holding it, and that the plaintiff was cut by shards of glass from the broken vase. At trial, the plaintiff did not present an expert on the issue of how the glass vase shattered, arguing res ipsa allowed jurors to presume defendant must have been negligent in some way for the vase to have shattered. The court granted a motion for a directed verdict made by the defendant at the end of the plaintiff’s case, finding the failure to present expert testimony on the issue was fatal to the plaintiff’s case. The trial judge also opined that it was unclear whether res ipsa loquitur applied to these circumstances. On review, the New Jersey Appellate Division reversed the order for a directed verdict and remanded the matter for a new trial. The Appellate Division, citing New Jersey Supreme Court precedent, stated that expert testimony is not necessary in all cases where the res ipsa loquitur doctrine is invoked. In fact, as long as, based upon common knowledge, the balance of the probabilities in the case favors negligence on the part of the defendant, expert testimony is not necessary. In essence, if the average juror is able to deduce how the accident occurred without needing to resort to specialized knowledge, then expert testimony is not required. Additionally, because this case involved a glass vase that was in the exclusive control of the defendant, the Appellate Division held that the doctrine of res ipsa loquitur could apply to these circumstances. The jury would be permitted to infer that the defendant was somehow negligent, causing the vase to shatter. The Mayer decision demonstrates that, much like in other areas of the law, expert testimony is only required in cases invoking the doctrine of res ipsa loquitur when the subject matter falls outside the ken of the average juror. Thanks to Christina Emerson for her contribution to this post. If you would like more information please write to mbono@wcmlaw.com . Previous Next Contact

News GC's Right of Supervision Over Subcontractor Work is Key to Determination (PA) July 27, 2017 < Back Share to: On July 19, 2017, the Superior Court of Pennsylvania affirmed an order denying a motion to remove the entry of nonsuit as to Appellee Patrick Smiley, Jr. (“Smiley”), following a jury trial that resulted in a $501,107.41 verdict against Fairman’s Roof & Trusses, Inc. (“Fairman’s”). Smiley filed the underlying suit against Fairman’s after Fairman’s delivered bent trusses to a construction site where Smiley was the general contractor. These bent trusses were installed by Chris Fisher Construction (“Fisher”) and led to the collapse of a partially constructed pole barn. The collapse left Brian Baird trapped beneath four trusses and seriously injured him. Smiley alleged that Fairman’s breached their contract and warranty by delivering bent trusses. Fairman’s also filed a complaint to join Fisher as an additional defendant. In January 2013, Brian Baird and his wife commenced a separate civil action against Smiley and Fairman’s for products liability, negligent design, premises liability, negligence, and loss of consortium. Smiley also filed a cross-claim against Fisher alleging that Fisher was solely liable for the claims asserted by Appellants or was required to indemnify Smiley pursuant to an alleged indemnification agreement between the parties. The trial court bifurcated the appellants’ claims against Fisher from all claims of liability against Smiley and Fairman’s. In the trial against Smiley and Fairman’s, the trial court granted Smiley’s oral motion for nonsuit. The jury then returned a verdict in Appellants’ favor and against Fairman’s in the amount of $501,107.41. Appellants filed an appeal contending that the entry of nonsuit in favor of Smiley was improper prior to the presentation of evidence by all defendants. The Superior Court disagreed stating that Fairman’s indicated on the record that it was not taking a position on Smiley’s oral motion for nonsuit. Thus, Fairman’s lack of opposition suggested it did not intend to present evidence as to Smiley’s liability as part of its defense. In addition, Appellants had the opportunity to develop a case for liability during their case-in-chief which they failed to do. The court adhered to the general rule in Pennsylvania that a contractor is not liable for injuries resulting from work entrusted to a subcontractor unless the general contractor retained control or right of supervision over the performance of the work. Here, Smiley had hired Fisher based on Fisher’s experience in building pole barns and delegated the task of construction and supplying labor to him. Further, Smiley did not visit the job site and never made an attempt to supervise Fisher’s construction work. Thus, Fisher was in total control of the project and therefore Smiley was not responsible for the actions of Fisher. As a result, the Superior Court found no abuse of discretion or error of law by the trial court in entering nonsuit in Smiley’s favor. Thanks to Garrett Gittler for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Court Curtails Use of Incompetent's Settlement (NY) November 22, 2013 < Back Share to: Most parents who serve as court-appointed guardians for their disabled child would know what is in their child’s best interest and would use settlement proceeds to advance those interests. But that does not mean that courts will abdicate their oversight responsibilities. In the Matter of the Application of Geoffrey M. and Jordanna M. involves Sigal M., a girl who suffers from cerebral palsy, quadriparesis, microcephaly, and other developmental issues. Previously, she had been adjudicated incapacitated under Mental Hygiene Law 81.02(b), and had received a structured settlement. The amount in the estate at the time of this decision was approximately $8 million. Sigal’s parents, who are also her co-guardians, sought to use a portion of those funds to pay $33,349 on the bat mitzvah party for her and 237 guests, and $60,000 on a trip to Israel for Sigal, her family, and an aide. The Nassau District Court rejected the request. In reaching its decision, the court considered two approaches. The first, followed by the First and Second Departments, limits withdrawals to necessities and education that cannot otherwise be provided by the parents. The second, articulated by Court of Claims Judge David Weinstein focuses on the best interests of the child. Noting that Article 81 is silent with respect to extraordinary expenses such family holidays and culturally significant milestones, the court focused on the necessity of preserving the estate for the child. For that reason, and because Sigal’s parents were people of means, the court denied the parents’ request to use the money to pay for the bat mitzvah and limited the amount of funds to be used on the vacation. Expenses for the daughter, her aide, and her mother were appropriate, but the court refused to allow expenses for the parents’ hotel room, and expenses related to Sigal’s siblings. Most parents believe they know what is best for their children, but courts have oversight responsibilities. When a guardian spends a disabled person’s money, courts will scrutinize whether the expenditures are for the disabled person or their family as a whole. Based on this decision, even when a disabled person has a major life event on the horizon, their guardians would be well advised to keep estate expenditures as ordinary as possible. Thanks to Mike Gauvin for this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Fore! -- PA Appellate Court Hits One Long and Straight. August 28, 2009 < Back Share to: In a ruling of special interest to WCM Partners, one of whom recently hit another in the side with a golf ball, a PA appellate court has just ruled in favor of a plaintiff who was struck in the face by a golfing partner's tee shot. In the case of Zeidman v. Fischer, the plaintiff was tasked with checking on the location of the group in front of him. While driving back to the tee to advise his partners that they could tee off, defendant Fischer teed off and smashed the ball right into the plaintiff's face. A lawsuit resulted. The trial court ruled for the defendant, but the appellate court reversed. It held that, under the particular facts of this case, it could not rule as a matter of law that the risk was "one inherent or common, frequent and expected” to the game of golf. The case will proceed. This is not good news for the guilty WCM partner as there are still 705 days remaining until the statute of limitations expires. http://www.superior.court.state.pa.us/opin.htm http://www.palawweekly.com/getarticle.aspx?ID=29913 Previous Next Contact

News A Plaintiff's Dream? The Unemployed Get Jury Duty Preference. June 25, 2012 < Back Share to: We tend to steer clear of more political discussions here at Of Interest, but every once in a while an idea comes along that we simply have to point out. According to Fred Clark, a well-known blogger, a solution to both the unemployment problem and the boring nature of jury duty would be to give jury duty preference to the unemployed and combine jury duty with a job fair. As if finding a fair and impartial jury isn't hard enough... For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News MSG and Knicks coach Isiah Thomas whacked in employment case October 3, 2007 < Back Share to: In a public relations nightmare, a federal court jury found Madison Square Garden and James Dolan, its Chairman, liable for sexual harassment, creating a hostile work place and retaliation. The jury apparently credited the account of former MSG executive Anucha Browne Sanders that Knicks coach Isiah Thomas made unwanted sexual advances and directed crude language towards her. The jury awarded $11.6 million dollars including a punitive damages award against Dolan of $3 million dollars. Defiant to the end, Dolan and Thomas vowed to appeal. http://www.cnn.com/2007/US/law/10/02/thomas.suit.ap/index.html#cnnSTCText Previous Next Contact

News NJ Appellate Division Limits Release in Equine Liability Case August 5, 2009 < Back Share to: Although known as the "Garden State," New Jersey is also home to many riding schools, stables and horse farms. It has the Meadowlands Racetrack, Monmouth Park Racetrack and Freehold Raceway just to name a few. Not surprisingly, New Jersey has a statute limiting the liability of the operators of equine activities. Many experienced operators supplement these statutory protections by requiring participants to sign detailed release and waiver forms to protect the operator from any claims for bodily injury. Can a release provide protection beyond those provided by statute? In other words, may a release protect an operator from risks that are specifically beyond the scope of immunities provided by New Jersey's Equine Activities Liability Act? According to Hubner v. Spring Valley Equestrian Center, the answer is "no." In Hubner, plaintiff was injured when her horse tripped over training poles embedded in the the floor of defendant's barn. Two issues confronted the appellate court. First, did the statute protect the equine operator under these circumstances? Second, if not, did the release signed by plaintiff release the defendant from liability? The court decided that the statute did not apply under the facts presented in Hubner. But, more importantly, the court invalidated the release as a violation of public policy. It reasoned that the legislature set forth the circumstances under which an equine operator would be entitled to immunity for claims arising out of equine activities. Thus, the enforcement of the release in a scenario where the operator is not entitled to statutory immunity would undermine "the balance of risks and costs" made by the legislature in the Equine Activities Liability Act. http://www.judiciary.state.nj.us/opinions/a4723-07.pdf Previous Next Contact

News NJ Appellate Division Says No to Frivolous Litigation Award July 29, 2009 < Back Share to: A defendant who prevailed on a claim for fees and costs to defend litigation on the grounds it was frivolous had its award overturned by the Appellate Division in Ferolito v. Park Hill Association, Inc., -- N.J.Super. -- , 2009 WL 2208333 (App.Div. 2009). The claim had been pressed under the frivolous litigation statute, N.J.S.A. 2A:15-59.1. Under this statute, a defendant may be reimbursed when a plaintiff files suit “in bad faith, solely for the purpose of harassment, dely or malicious injury” or if the plaintiff pursues a claim that he knows or should know is without any reasonable basis in law or equity to support it or without a good faith argument that the existing law should be changed. However, if the plaintiff is represented by counsel, the defendant must also prove that the plainitff pursued the claim in bad faith. Additionally, in order to succeed on such a claim, a defendant must comply with R. 1:4-8 by serving a demand that very specifically addresses the reasons why the claim is frivolous to provide the plaintiff opportunity to withdraw the pleading. Although the trial court found that litigation to compel a condominium association to install a satellite dish so that a resident could watch Russian language programming was frivolous, the appellate division disagreed. Finding that the litigation was motivated by a goal of great importance to the plaintiff, the court did not find bad faith. Moreover, the letter that demanded the dismissal of the claim addressed different issues than those for which the court actually dimissed the action. Thus, defendant failed to meet the notice requirement. Previous Next Contact

News Inconsistent Evidence Not Sufficient For New York’s “Storm in Progress” Rule (NY) March 24, 2023 < Back Share to: New York’s “storm in progress” rule protects a property owner from liability for accidents occurring “as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.” However, the burden and quality of proof is important, and a defendant must be careful to corroborate their argument. Even when a lower court grants summary judgement based on the rule, an appellate court may reverse if the proffered evidence is not sufficient to support it. The Appellate Division, Second Department did just that in Licari v. Brookside Meadows, LLC. In that case, the plaintiff slipped and fell on ice that formed in the cracks of an uneven, broken walkway located in defendants’ apartment complex. Plaintiff claimed that the icy conditions formed and remained as a result of precipitation that occurred days before the accident. The defendants moved to dismiss based on the “storm in progress” rule, relying on deposition testimony from both the plaintiffs and defendants that described the weather at the time of plaintiff’s accident. Although the lower court granted defendant’s motion, the Second Department reversed and found that the standard for the “storm in progress” defense was not met. In so holding, the Second Department found that there were inconsistencies as to whether the storm was actually in progress or whether it had ended by the time of the accident. The Court observed that if the storm had ended several days before the accident, then the defendants would at minimum have constructive notice of the frozen walkway cracks. The defendants failed to resolve the confusion as to whether or not the ice at issue existed prior to the storm and the Court that there were too many factual inconstancies to merit a successful “storm in progress” defense. The Licari case highlights the importance of having clear and consistent evidence in asserting a “storm in progress” defense. The Court made it clear that inconsistent deposition testimony as to the timing of a storm is not sufficient to meet the standard and prevail on a summary judgment motion. Thank you to Alexander Rabhan for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Attempting To Turn The Corner, Marsh & McLennan Replaces CEO Cherkasky February 1, 2008 < Back Share to: Brian Duperreault, the former head of ACE insurance, has been named by Marsh & McLennan as its new chief executive. http://www.nytimes.com/2008/01/31/business/31insure.html?_r=1&scp=1&sq=marsh&st=nyt&oref=slogin Previous Next Contact

News Dennis Wade Speaks at Federal Bar Association's Art Law & Litigation Day November 16, 2017 < Back Share to: Dennis Wade is co-chair of the Federal Bar Association’s Art Law & Litigation Seminar in Miami, Florida on December 6, 2017 (to coincide with the launch of Art Basel). Dennis’s panels include Protecting the Art Market: Fakes, Forgeries & Freeports and Wynn’s Elbow: The Art of Dealing With Damage to Art. Previous Next Contact

News Is Getting The Right Panel Key to Appeal In NY's First Department ? May 17, 2012 < Back Share to: In New York's Appellate Division, First Department, forget precedent, the key is getting the right Court panel. In Maniscalco v. New York City Transit Auth., the plaintiff, a pedestrian, was struck by the defendant's side-view mirror, as she crossed the street within the crosswalk with the light in her favor. The plaintiff moved for and was granted summary judgment by the Supreme Court. On appeal, the defendant did not challenge the Supreme Court's finding that he was negligent and that his negligent was the substantial cause of the accident. Rather, he contended that questions of fact existed as to the plaintiff's comparative negligence, precluding summary judgment. In 1993, the Court of Appeals, in Thoma v. Ronai, held that a plaintiff is not entitled to summary judgment where there is an issue of fact as to comparative negligence. While this should have resolved the issue once and for all, it did not. In 2010, a panel of judges on the First Department declined to follow it. But just two years later, a different panel of the same court followed Thoma. After a long look at the mixed precedent on the matter, the Maniscalco Court reversed the Supreme Court, denied plaintiff summary judgment, and decided to follow Thoma. It reasoned that the point of Thoma and its progeny is that, where there is evidence that both the defendant and plaintiff were negligent and that each one's negligence may have been a substantial factor in causing the injury, whether one party's negligence was a substantial factor in causing the injury should not be determined in isolation. Rather, each party’s liability should be considered and determined simultaneously with the material, and overlapping, issue of whether the other party was also culpable. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03548.htm Thank you for Gabe Darwick for this post. Previous Next Contact