Wade Clark Mulcahy LLP

There’s Nothing Here... We can’t find the page you’re looking for. Check the URL, or head back home. Go Home

News No Dram Shop Liability for Pennsylvania Employers Serving Alcohol to Intoxicated Employees (PA) January 27, 2023 < Back Share to: Work-sponsored outings and events are normally seen as a much-welcomed reprieve from the old “9-5”. However, when alcohol is involved, Pennsylvania employers have potential liability to third parties who are injured by suffer at the hands of an intoxicated employee. In Klar v. Dairy Farmers of America Inc., the Superior Court of Pennsylvania addressed the standard which applied to an employer in such a situation. In that case, the Dairy Farmers of America (DFA) held a golf outing for its employees who had to pay a monetary contribution to participate in the outing. An employee became intoxicated and the DFA continued to serve him even though they knew he was an alcoholic and visibly intoxicated. The employee drove home and hit plaintiff who was riding on his motorcycle, causing serious injuries. Plaintiff sued the driver and the DFA, alleging that it was liable for serving the employee when they knew he was an alcoholic and intoxicated. The DFA moved for judgment on the pleadings, arguing that it was a “social host” and not subject to Dram Shop liability because they did not qualify as a “licensee” under PA’s Liquor Code and did not obtain “licensee status.” DFA further argued that there is no liability on the part of a social host who serves alcoholic beverages to their adult guests. The trial court granted DFA’s motion for judgment and Klar appealed, arguing that an unlicensed company-employer who provides an uncontrolled amount of alcohol to a visibly intoxicated employee in exchange for remuneration is liable to injured third parties. The Superior Court disagreed and affirmed, observing that “only licensed persons engaged in the Sale of intoxicants have been held to be civilly liable to injured parties.” The Court further noted that a social host is not liable for serving alcoholic beverages to a guest as “it is the consumption of the alcohol, rather than the furnishing of the alcohol, which is the proximate cause of any subsequent occurrence.” The Court ruled that an employer is a non-licensee under the liquor code and is not subject to standard civil liability because it acted as a social host and was not in the business of furnishing and selling alcohol. The Klar decision makes it clear that Pennsylvania employers cannot be subject to Dram Shop liability for serving alcohol to intoxicated employees. However, the Supreme Court of Pennsylvania has agreed to hear the appeal of the Superior Court’s ruling and a decision is expected this year. WCM will monitor the appeal and provide an update once a decision is announced. Thank you to Haley Matthes for her contribution to this post. Should you have any questions, please contact Andrew Gibbs. Previous Next Contact

News Sovereign Immunity and Charter Schools June 21, 2024 < Back Share to: In a case of first impression, Florida’s Fourth District Court of Appeal recently held, in Soto v. Franklin Academy Foundation, Inc. , Case Number 4D2023-2108 (Fla. 4th DCA May 8, 2024), that a private school chartered by the local school board was a state agency entitled to the pre-suit protections afforded by Florida Statute § 768.28(6)(a), Florida’s sovereign immunity statute. In Soto , a charter school student was injured in a playground accident and sued. The student did not provide the school the statutory pre-suit notice required by Florida Statute § 762.28 and the trial court dismissed. On appeal, the student argued that because the school was chartered by the local school board, which in turn was chartered by the local county, and not the state, the school was not a “state agency” and, thus, was not entitled to sovereign immunity under Florida Statute § 768.28(6)(a). The appellate court disagreed, finding that under Florida law “[a]ll charter schools in Florida are public schools and shall be part of the state’s program of [public] education.” Fla. Sat. § 1002.33(1) (2018). The court also found that because schools operated by a local school board are entitled to sovereign immunity under Florida Statute § 768.28(6)(a), there is no reason to treat schools chartered by the same local school board differently. Applying this reasoning to the case at hand, the appellate court affirmed, holding that private schools chartered by a local school board were entitled to sovereign immunity under § 768.28 of the Florida Statutes. The Takeaway. In defending a claim against a private school, claim’s handlers and attorneys alike must be cognizant of the jurisdiction’s sovereign immunity laws and the application of that law to privately operated but publicly chartered schools. Soto v. Franklin Academy Foundation, Inc. .pdf Download PDF • 90KB Previous Next Chip M-P George Chip M-P George Of Counsel +1 786 636 1541 cgeorge@wcmlaw.com Contact

News Plaintiff’s Typo Leads To No Liability Coverage For The Insured July 17, 2012 < Back Share to: On June 27, 2003, Merrimack Mutual Fire Insurance Company had an insurance policy in effect providing liability coverage to 25 Avenue C New Realty, LLC. On June 27, 2005, Alea North America Insurance Company had an insurance policy in effect providing liability coverage to 25 Avenue C. Eamonn Grimes filed a lawsuit against 25 Avenue C to recover for personal injuries sustained on 25 Avenue C’s property on June 27, 2005. 25 Avenue C gave timely notice of the claim to Alea. Alea then undertook the defense of this case and assigned defense counsel. In May 2007, an investigator discovered that the accident actually occurred on June 27, 2003, not June 27, 2005. In August 2007, defense counsel received a bill of particulars from Grimes stating the accident occurred on June 27, 2003. On October 4, 2007, defense counsel took the deposition of a nonparty witness who testified that Grimes’ accident occurred on June 27, 2003. Inexplicably, it was not until May 15, 2008 that Alea’s third-party claims administrator spoke with 25 Avenue C and determined that Merrimack was the actual insurer on June 27, 2003. At that point, defense counsel tendered the defense to Merrimack and notified them that Alea’s policy was not in effect at that time. Thereafter, on July 8, 2008, Merrimack rejected Alea’s tender on the grounds that it was not given timely notice of the claim. Alea then advised 25 Avenue C on August 11, 2008 that it was declining coverage because the actual date of the incident predated coverage. 25 Avenue C then brought this action seeking a declaration that either Alea or Merrimack was obligated to defend and indemnify them in the underlying personal injury action. The Supreme Court granted 25 Avenue C’s motion for summary judgment against Merrimack, finding that Merrimack was obligated to defend and indemnify 25 Avenue C as Merrimack “was notified within a reasonable time under the facts and circumstances and there is no apparent prejudice, as discovery is ongoing.” The court also granted Alea’s motion for summary judgment, allowing Alea to bow out. The Appellate Division upheld the decision as to Alea, but reversed in favor of Merrimack, finding that under these facts, the five-year delay in notifying Merrimack was unreasonable. The Appellate Division found fault in Alea, stating that Alea should have notified 25 Avenue C as early as May 2007, and that Alea’s attorneys were conclusively aware in August and October of 2007 that the correct date of the accident was June 27, 2003, not June 27, 2005. Further, the court was critical of Alea’s third-party claims administrator for waiting until May 15, 2008 to contact 25 Avenue C to determine which insurer covered the premises in June 2003. This decision leaves 25 Avenue C without coverage from either Merrimack or Alea in the underlying personal injury suit. Given the mistakes made and the language in this decision, it will be interesting to see which party 25 Avenue C goes after. Thanks to Michael Nunley for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04672.htm   Previous Next Contact

News Not All Falls From A Height Trigger NY Labor Law 240(1) Liability August 18, 2009 < Back Share to: In Rozmyslowicz v. Keyspan Generation, LLC, the plaintiff, an employee of an asbestos removal company, was assigned to construct a wooden tunnel through which workers would pass on their way to a “mobile decontamination unit.” While trying to climb atop the decontamination unit, the plaintiff fell and was injured. He brought an action based upon a violation of Labor Law § 240(1), for failure to provide proper safety devices. At trial, the jury concluded that the defendant had not failed to provide the plaintiff with proper protection from height-related risks. After trial, the plaintiff moved to set aside the verdict as against the weight of the evidence. His motion was denied at the trial level and again on appeal. The appellate court held that the jury could have rationally and fairly concluded that the plaintiff's assigned task neither required, nor contemplated, that he climb onto the roof of the decontamination unit, and, further, that the equipment he was provided was adequate to the task he was assigned. Thanks to Cheryl Fuchs for her contribution to this post. http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2009/D22240.pdf Previous Next Contact

News Condominium Associations continue to be “Residential” Despite Commercial Nature of Some Units. December 1, 2017 < Back Share to: In New Jersey, residential property owners do not owe a duty to maintain public sidewalks abutting their properties, but commercial property owners do. New Jersey courts have consistently followed this dichotomy since 1981, but much litigation has ensued as to what is “residential” as opposed to “commercial.” Courts employ the “predominate use” test to determine whether a property is residential or commercial. In Waldier v. Piper 1 Townhouse Condominium Association, the Appellate Division upheld a trial court’s dismissal of a Condominium Association on summary judgment. In that case, plaintiff alleged that she was thrown from her bicycle and injured due to a defect in a sidewalk adjacent to the condominium complex. The condominium complex consisted of thirteen units, and the Association was a not-for-profit entity. The owners made up the Association. The condominium’s Master Deed contained a restrictive covenant mandating that each unit be used as a private residence only. However, unit owners were permitted to rent units. Discovery revealed that two to four units were held for rent by their owners. Only five of the units were owner-occupied all year. Nonetheless, the trial court determined that the condominium complex was predominately residential and the appellate court agreed. Thanks to Michael Noblett for his contribution to this post.       Previous Next Contact

There’s Nothing Here... We can’t find the page you’re looking for. Check the URL, or head back home. Go Home

News Insurer’s Assault and Battery Exclusion upheld in Bronx County Supreme Court for a Slip and Fall Arising from Spilled Drinks during a Club Melee (NY) January 15, 2021 < Back Share to: Quanisha Simmons commenced a personal injury action against Blvd Bar & Lounge nightclub, located in Westchester County, New York, when she slipped and fell on a puddle of spilled drinks, which was on the floor due to “a melee which erupted within and without the club.” Simmons testified that she was pushed, shoved, and trapped in the bar at her deposition, and when she took a step toward the exit, she fell and allegedly injured her left knee due to a wet floor caused due to the spillage of alcoholic beverages. Blvd Bar’s landlord, C&S Franklin Realty, filed a declaratory judgment in Bronx Supreme Court, against Blvd Bar’s insurer, United States Liability Insurance Company after USLIC disclaimed coverage to them on the assault and battery exclusion. In their complaint, C&S states USLIC issued a Comprehensive General Liability policy to Blvd, naming C&S as an additional insured per the lease executed between C&S and tenant Blvd Bar. C&S demanded that USLIC assume its defense in the underlying action by Simmons and provide indemnification. USLIC moved for summary judgment based upon the assault and battery exclusion precluding coverage both for suits “based upon any actual or alleged ‘assault’ or ‘battery’ stating “since a melee qualifies as an “assault” and/or battery as defined in the policy, the policy does not provide coverage for any and all claims of bodily injury that result from such an event.” In response, C&S argued that the exclusion did not apply because the tenant’s negligence allegedly caused the bodily injury in connection with the spillage on the floor, not an assault or battery. The Bronx Court applied a “but-for” test and held that coverage did not exist because the accident would not have occurred “but for” the melee in the nightclub (i.e., an assault or battery) which caused a puddle of spilled drinks. The court explained that the plain language of the exclusion applied because the pleadings were “based upon” an assault or battery and the bodily injury “involved” an assault or battery. Thanks to Irving Fayman for his contribution to this post. Please contact Thomas Bracken for more information. Previous Next Contact

News Constructive Notice Caught On Tape (NJ) March 27, 2013 < Back Share to: In the recent decision of Marina Andara v. Wal-Mart Stores East, New Jersey’s appellate court relied on surveillance footage of the plaintiff’s accident to rule in favor of the plaintiff on the issue of constructive notice. The plaintiff alleged that she fell due to water on the floor at Wal-Mart near the self service counter. Surveillance footage of the incident showed the plaintiff’s fall and the subsequent clean-up by a Wal-Mart employee. Wal-Mart moved for summary judgment, alleging that they did not have actual or constructive notice of water on the floor. With their motion, Wal-Mart submitted an affidavit of an employee who asserted that she walked through the area five minutes before the plaintiff’s fall and there was no water on the floor. The surveillance footage revealed that the employee was in the area, but did not necessarily confirm that an inspection had taken place. Moreover, the footage did not show anything being spilled on the floor for at least an hour before the incident, leading one to believe that the wet condition existed for over an hour. The appellate court found that, when viewing the facts in the light most favorable to the plaintiff, a rational jury could find that Wal-Mart had constructive notice of the water prior to plaintiff’s fall and reversed the lower court’s decision that had dismissed the plaintiff’s complaint. Special thanks to Heather Aquino for her contributions to this post. For more infromation, please contact Nicole Brown at nbrown@wcmlaw.com .   Previous Next Contact

News New Jersey Court Favors New York in Coverage Dispute September 27, 2013 < Back Share to: In Certain Underwriters At Lloyd’s , London, v. Books for Less, LLC et al, New Jersey’s Appellate Division affirmed the dismissal of this case on the basis of forum non conveniens. Lloyd’s commenced an action in New Jersey seeking a declaratory judgment against defendant Books For Less. One week later, Books For Less commenced an action against Lloyd’s and its insurance broker in New York and sought the dismissal of the New Jersey action based upon forum non conveniens. Books For Less was a New York limited liability company and its broker was a New York Corporation. The Lloyd’s policy insured a Books For Less warehouse in New Jersey and an office space in New York. Lloyd’s sought policy rescission after the warehouse sustained over $270,000 in damages and it learned that the warehouse had previously been damaged in 2009, which was not disclosed on insured’s application for insurance. The trial court held that the majority of the parties were companies with deep roots in New York. Moreover, in addition to the New Jersey warehouse, the policy also provided coverage to premises in New York and the policy was negotiated in New York. In addition, the broker refused to submit to New Jersey’s jurisdiction and the trial judge reasoned that the broker was a necessary and indispensable party. The appellate court upheld the lower court’s decision as a reasonable exercise of its discretion. Moreover, it disagreed with Lloyd’s argument that the “first filed rule” favored retention of jurisdiction in New Jersey. Books for Less provides an excellent examination of doctrine forum non conveniens. Actions will be directed to jurisdiction with the most significant interests and where most of the parties, witnesses, and evidence are located. Thanks for Alison Weintraub for her contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com . Previous Next Contact

News Justice Is Still No Laughing Matter in NJ. March 15, 2013 < Back Share to: We previously commented on the case of NJ municipal judge Vincenzo Sicari who under the alias of "Vince August" plies his comedic trade by night (and administers justice and legal services by day). NJ's Supreme Court has now taken up the issue. The question is whether comedic performances are incompatible with the proper decorum required for judicial office -- as an officer of the court I will bite my tongue on further comment on this point. Who will get the last laugh? Stay tuned to find out! (And you thought that NJ's highest court had more important things to worry about). For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Notice To Wrong Town Official Of Defect Is Not Proper Notice To Town April 16, 2009 < Back Share to: In Gorman v. Town of Huntington, the plaintiff s commenced a personal injury action against the town due to an alleged uneven sidewalk in front of a local church. Four months prior to the plaintiff's accident, the pastor of the church sent a written complaint to the town's Department of Engineering Services, which is responsible for sidewalks, complaining of the condition and requesting a repair of the sidewalk. The Court of Appeals reversed the Appellate Division ruling and held that the Town of Huntington was entitled to summary judgment because the town did not receive prior written notice pursuant to the specific language of a local statute pertaining to notice The local statute designated the Town Clerk or the Town Superintendent of Highways as proper receipts of written notice of sidewalks defects. By statute, notice to a department that was not enumerated in the statute would invalidate the notice. Since the Department of Engineering Services was not a statutory designess, notice to the department was deemed insignificant. Thanks to Maju Varghese for his contribution to this submission http://www.courts.state.ny.us/reporter/3dseries/2009/2009_02648.htm Previous Next Contact