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News All Bark, No Bite (NJ) August 13, 2013 < Back Share to: In Christen v. Wyka, New Jersey’s Appellate Court recently dealt with the issue of whether the owner of a barking dog that startles a passerby can be held liable for any resulting injury. Christen was walking past Wyka’s house when his barking dogs startled her. In response, she veered to her right and fell in a grassy area next to the sidewalk. Christen acknowledged that there was no defect in the sidewalk that contributed to her fall. Although Wyka’s dogs were kept in a fenced in yard with a “Beware of Dog” sign on the fence, Christen argued that Wyka was liable for her injuries because he failed to control his dogs and allowed them to jump on the fence and bark. The court disagreed, noting that the dogs did not have a violent propensity and did not make contact with Christen. The court further noted that a barking dog is one of many varieties of events that could startle a passerby, such as a shrieking toddler or sudden loud music from a home. Ultimately, the Appellate Court upheld the lower court’s decision to dismiss Christen’s complaint. Special thanks to Heather Aquino-Obregon for her contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News The Devil Is in the Details… of the Lease (NY) April 9, 2020 < Back Share to: In settled law, an out-of-possession landlord is not responsible for any injuries which occur on its premises unless the landlord has retained control over the premises, and (i) has a duty imposed by law or statute, (ii) has a duty imposed pursuant to a contract; or (iii) takes up that duty through course of conduct. But this rule is not infallible. In Broughal v. Tae J. Kwon, the plaintiff was injured in a slip and fall on ice located on the walkway of a strip mall owned by defendant landlord. Plaintiff, in this case, was also the tenant/lessor of the premises, slipping on the icy sidewalk of his own business. In a summary judgment motion, the landlord established that the lease agreement held the tenant responsible for removing any snow and ice from the walkway where the accident occurred. Plaintiff never rebutted owner’s argument on this issue. The Second Department, however, found that the landlord failed to provide any evidence that they had no duty to maintain the drainage system, that they adequately maintained the drainage system, and/or that the drainage system was not the proximate cause of the slip and fall (a drainage malfunction could have prevented an accumulation of water which froze into ice). The Second Department agreed that landlord defendant failed to prove that the drainage system was not a possible cause of the ice on the sidewalk and found it to be an issue to be determined at trial. This case highlights an important element in applications for summary judgment under the guise that a lease agreement absolves a landlord from liability for injuries occurring on the premises. The Second Department does not look favorably to releasing a landlord from any liability, leaving an injured plaintiff with no recourse at law, simply because the lease language places the responsibility on the tenant for maintaining the premises free from snow and ice. If the landlord does not prove that his maintenance of the building was not the proximate cause of a slip and fall by keeping detailed maintenance records and performing regular check-ups on the premises, then he will need to prove the same trial. Thanks to Raymond Gonzalez for his contribution to this post. Please contact Vincent Terrasi with any questions or comments Previous Next Contact

News How Plaintiff Couched Testimony Determined Applicability of the Labor Law February 3, 2009 < Back Share to: In Pakenham v. Westmere Realty, LLC, the plaintiff, a service technician, responded to a call of "no heat" at the defendants' office. The plaintiff used a ladder to access the heating unit on top of the building. While descending, the ladder he slipped and fell to the pavement. The plaintiff sued alleging violations of Labor Law § 240(1) and § 241(6) . The defendants moved for summary judgment arguing that the Labor Law did not apply. The court split its decision and held that plaintiff's “repairs” implicated the Labor Law § 240(1) claim, but conversely held that the Labor Law § 241(6) cause of action had to be dismissed as it was “inapplicable outside the construction, demolition or excavation contexts”. Thanks to Cheryl Fuchs for her contribution to the post. http://decisions.courts.state.ny.us/ad3/Decisions/2009/504889.pdf Previous Next Contact

News PA Public Policy Not Enough to Allow Insurer to Win Out-of-the-Box Judgment against Sandusky. June 12, 2012 < Back Share to: Opening statements began yesterday in the Jerry Sandusky criminal trial -- a case with a truly horrific (alleged) fact pattern (and that’s probably an understatement). But, as you would expect, more than the criminal trial is afoot and, in fact, parallel civil cases are proceeding. Many of those civil cases have been filed against The Second Mile, Jerry Sandusky’s former charitable organization and Jerry Sandusky himself. And, of course, at the time of many of the alleged incidents, The Second Mile had insurance – with Federal Insurance Company (“Federal”). When confronted with the claims, Federal filed a declaratory judgment lawsuit in federal court (i.e. the Middle District of Pennsylvania). After issue was joined, but before any discovery had occurred, Federal moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Federal argued that, in light of the allegations against Sandusky and purely as a matter of public policy, the court should rule that Sandusky was not entitled to either defense or indemnity. After hearing arguments and reading the papers, the Court denied the motion. The Court noted that while Pennsylvania law “prohibits the reimbursement of Sandusky for any damage award that he may ultimately be found to owe arising from the allegations that he molested and sexually abused children”, in the absence of any discovery (and notwithstanding the well publicized allegations), a 12(c) judgment for Federal would be premature. It just goes to show that the duty to defend is generously interpreted, indeed. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News NJ: Counsel's Inflammatory Comments Do Not Warrant A New Trial June 20, 2012 < Back Share to: Barbara Jones filed suit against Albert Pannici for injuries sustained in a motor vehicle accident. In turn, Pannici filed a third-party complaint against a phantom driver he claims caused the accident. Jones’ insurer, Allstate, intervened due to their potential liability under the Uninsured Motorist provision of Jones’ automobile insurance policy. At trial, Allstate’s attorney made several statements to suggest that Pannici was not telling the truth as to the cause of the accident. Specifically, in his opening and closing statements, counsel alleged that Pannici became nervous after the accident and lied about the phantom vehicle. Additionally, during his cross-examination, counsel attempted to elicit testimony to suggest that Pannici’s status as a former police officer made it easy for him to concoct a story about the phantom vehicle. Pannici’s attorney did not object to any of the comments made. Ultimately, the jury returned a substantial verdict against Pannici. Pannici moved for a new trial, arguing that Allstate's counsel's comments in the opening, during the cross-examination and in summation led the jury to believe that something improper had occurred and that Pannici was not being truthful. The court disagreed with Pannici’s position and found that the comments made by counsel for Allstate did not amount to error so prejudicial as to require a new trial. Rather, the court found that there was sufficient evidence for the jury to reject Pannici’s version of the accident. Thanks to Heather Aquino for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a4834-10.pdf Previous Next Contact

News City Escapes Liability Based On No Prior Written Notice April 3, 2009 < Back Share to: In Santiago v. City of NY, the plaintiff was playing a game of football with his sons in a City owned park when he tripped and fell because of a depression near a park bench. In support of its motion for summary judgment, the City of NY argued that the plaintiff did not comply with the prior written notice requirement of section 7-201(c)(2) of the Administrative Code. Although there are exceptions to the rule, the City argued that it did not create the defect through an affirmative act of negligence nor was the defect caused by a special use that benefited the City. The court ruled in favor of the City and dismissed the matter. Thanks to Ed Lomena for his contribution to this submission. http://decisions.courts.state.ny.us/fcas/FCAS_docs/2009APR/4200129962000100SCIV.pdf Previous Next Contact

News SDNY Among Federal Courts Rejecting Claims For Coverage Of COVID-19 Business Losses August 19, 2022 < Back Share to: Two recent SDNY decisions highlight the national consensus among courts across the country to rejects insureds’ claims for coverage of pandemic business losses. According to Law360’s COVID-19 Insurance Case Tracker, these two cases are among nearly 1,400 federal cases across the country since the pandemic began. About half of all such federal cases have been dismissed. Of Interest previously covered developments at the state level, the New Jersey Appellate Division, that continued the national trend upholding insurers’ denial of coverage for business losses during the pandemic. JRLDDS LLC d/b/a Jeffrey R. Lemler, DDS v. The Hartford Financial Services Group and Trumbull Insurance Company, 21-CV-9487 (JMF), (S.D.N.Y. Jul. 29, 2022) In JRLDDS v. The Hartford Financial Services Group and Trumbull Insurance Company, the Court began its discussion referring to the “more than six dozen decisions applying New York law (…) to claims of the sort made by” the insured in this case. Plaintiff, a dentist, held an all-risk insurance policy that covered business interruption losses and “direct physical loss of or damage to” his business property. When the insurer denied coverage, plaintiff sued for breach of contract, breach of the implied covenant of good faith and fair dealing, violation of the NYGBL, and unjust enrichment. The Court granted defendants’ motion to dismiss for failure to state a claim and relied on the rationale of the dozens of cases that had already decided similar issues: 1) Direct physical loss of or damage to property does not encompass “loss of use” of business facilities; 2) The “presence of the COVID-19 virus in the air and on the surfaces” of an insured premise does not “constitute[] ‘direct physical loss or damage to’” property; 3) COVID-19 shut-down orders did not trigger coverage because they “were the result of the COVID-19 pandemic and the harm it posed to human beings, not … risk of physical damage to property.” BROADWALL Management Corp. et al, v. Affiliated FM Insurance Co., 21-CV-10247 (PAE), (S.D.N.Y. Aug. 1, 2022) In dismissing this plaintiff’s amended complaint, the Broadwall Court similarly referred to the “avalanche of authority” in New York courts that has determined that “while the presence of COVID-19 may render property potentially harmful to people, it does not constitute harm to the property itself.” Both SDNY cases above relied on the Second Circuit’s 2021 decision in 10012 Holdings, Inc. d/b/a Guy Hepner v. Sentinel Insurance Company, Ltd which held that an art gallery was not entitled to coverage for business losses it suffered during the pandemic and related government restrictions because a loss of use of its premises did not constitute actual physical loss or damage to the property. Thanks to Abed Bhuyan for his contribution to this post. Please contact Heather Aquino with any questions Previous Next Contact

News PA’s Highest Court – A Successful Carrier Can’t Always Get Its Money Back. August 25, 2010 < Back Share to: In the case of American and Foreign Insurance Company, et al. v. Jerry’s Sport Center, et al., the insurers assigned defense counsel (under a ROR) to defend a number of gun dealers who had been sued by the NAACP for the “negligent creation of a public nuisance by virtue of the industry’s failure to distribute firearms reasonably and safely.” After investigating the facts, the carriers commenced a declaratory judgment action to obtain a declaration of no coverage – an endeavor that was successful. After winning, the carriers asked the court to require the insureds to reimburse the insurers for all paid defense fees as, to require otherwise, would confer an unjust enrichment upon the insureds. The trial court agreed. Appeals resulted. The question presented to PA’s highest court was whether the issuance of a ROR created a right of reimbursement (which is the majority US view), or if the insurance contract itself required a provision authorizing reimbursement (which is the minority US view). The PA Supreme Court adopted the minority view. It held that the right of reimbursement must be expressly set out in the insurance contract or it does not exist. http://www.pacourts.us/OpPosting/Supreme/out/J-48-2009mo.pdf and http://www.pacourts.us/OpPosting/Supreme/out/J-48-2009co.pdf. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News What is SOPA all about? January 20, 2012 < Back Share to: You may have noticed yesterday that your usual go-to research site, Wikipedia, was blocked. Your dismay, while understandable, was intended by Wikipedia personnel. The black-out was designed to bring awareness to the Stop Online Piracy Act currently circulating through the House of Representatives (the sister bill PIPA- Protect Intellectual Property Act is the Senate’s version). Both bills exist to combat what Congress sees as a problem with international websites that provide U.S. consumers with access to pirated intellectual property, such as movies and music. As a practical matter, the bills would give Justice Department prosecutors the ability to block the foreign sites from U.S. visitors. For example, the attorney general could require search engines to disable links to the sites or prevent credit-card processors from processing payments to the site. In addition, the bills would allow content owners like music studios and film production companies to sue websites that host pirated material. The problem with the bills, claim a multitude of internet-based websites and free-speech advocates, is that they are drafted so broadly as to inhibit speech on the internet. The bills require only a short good-faith letter that the website is allegedly hosting pirated content. Once the letter is received, the website has only five days to either shut down the site or contest the letter in court. Opponents claim that is impossible for websites with huge amounts of user-generated content, such as Facebook and twitter, to determine what material is pirated. What would SOPA mean for you? If SOPA (or PIPA) were legalized in their current forms, every website host would need to be extremely vigilant about material, especially interactive media, posted on their site in order to ensure that none of the material is pirated. There has been a huge outcry against the bills from non-traditional media outlets all over the county and President Obama has publicly stated he would not sign either SOPA or PIPA into law in their current forms. WCM is following the progress of the bills and will update the site periodically as new information comes available. Remy Cahn   Previous Next Contact

News Bus Driver Not Liable For Rowdy Passengers (NJ) January 5, 2018 < Back Share to: In Dawkins v. One Bus, the New Jersey Appellate Division considered whether expert testimony was required for a plaintiff to pursue claims against a bus company for the driver’s failure to contact her dispatcher when rowdy teens boarded the bus. Plaintiff was riding in a bus operated by defendant when four teenagers boarded the same bus. At the bus stop, one teenager boarded at the front of the bus, while the remaining three teenagers boarded at the bus’s rear door without paying their fares. According to plaintiff, the teenagers “were standing in the aisle of the bus . . . being rude to other passengers [and] . . . talking bad about some passengers.” The bus driver informed the teenagers entering at the rear doors that they would have to board via the front entrance and pay their fares. However, the teens refused and remained on the bus. As plaintiff was exiting at the bus’s rear doors, one of the teenagers kicked plaintiff in the back, causing her to slide down the rear steps of the bus. Another teenager also threw a bottle of bleach at plaintiff’s face. Plaintiff filed suit, alleging her injuries occurred as a result of the defendant bus company’s negligence. Plaintiff served a liability expert report, who opined that: (1) the driver should have immediately contacted the dispatcher when the teens boarded the bus and failed to pay their fare; and (2) the driver should have contacted the dispatcher when it was obvious that the teens were harassing other passengers. At the conclusion of discovery, the trial court granted defendant’s motion for summary judgment, finding no link to demonstrate that if the driver had contacted the dispatcher, the incident could have been prevented. The trial judge also found plaintiff’s expert unqualified to render his opinions since he lacked a foundation based on any objective standard. On appeal, the Appellate Division affirmed the trial court’s decision and agreed that plaintiff failed to demonstrate by competent evidence that defendant owed her a duty, that there was a breach of that duty, and that her injuries were caused by defendant’s breach. Specifically, the Appellate Division reasoned that there was no evidence that the bus driver was aware of any threats to the passengers. Under a totality of circumstances analysis, there was no evidence that any foreseeable harm would come to the passengers, let alone that a passenger would be kicked and then assaulted with bleach. Without any information regarding the danger to the passengers, there were no reasonable steps the driver could have taken to protect plaintiff. Lastly, the Appellate Division found that plaintiff’s expert report and testimony failed to support that the generally accepted standard is for a bus driver under similar circumstances is to contact the dispatcher. Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Private Information Posted to Social Media Accounts To Be Produced When Relevant March 20, 2018 < Back Share to: The issue of discovery access to a party’s private social media postings had not previously been addressed by a Pennsylvania appellate court. The Monroe County Court of Common Pleas dealt with this question in Roth v. Great Wolf Lodge of the Poconos, LLC by referring to trial courts from other jurisdictions. It held that there was no evidentiary threshold that a party seeking private information from a social media account needs to meet so long as it can show that such information is relevant to the other party’s claims. In Roth, plaintiff, Michael Roth, claimed he collided with his daughter on a waterslide at the Great Wolf Lodge. Great Wolf Lodge demanded the Facebook wall posts of Michael and his wife, Lauren, made during the year immediately prior to the alleged accident and the year after. The Roths refused to comply. They objected on the grounds that Great Wolf Lodge failed to produce any evidence indicating that the private sections of their Facebook accounts would provide relevant information and argued that Great Wolf Lodge was entitled only to information posted to the public sections. Great Wolf Lodge filed a motion to compel responses to its requests for the private information. Without any binding Pennsylvania precedence, the court relied primarily on three cases from different federal district courts. The first, Georgel v. Preece, a Kentucky federal case, required an evidentiary bar, holding that private information from social media accounts is discoverable only if the party seeking the information can show that the other party’s public postings contain information that undermines that party’s claims. At the other end of the spectrum was Higgins v. Koch Development Corp., an Indiana federal case that held that all social media postings were relevant and required to be produced without any evidentiary showing by the party seeking the information. Finally, Giachetto v. Patchogue-Medford Union Free School District, a New York federal court held that the proper method was to have the non-seeking party’s counsel review the information and determine what is relevant to the claims, keeping in mind the broad scope of discovery. The Roth court favored the approach from Giachetto. It opined that imposing the Georgel evidentiary bar could shield relevant evidence from disclosure merely because a social media user chose not to share any information publicly. A more balanced approach was adopted. The court decided that counsel for the Roths would have to review the Facebook accounts for private postings related to the alleged accident, and the Roths’ ability or inability to enjoy physical activity, which it deemed relevant to the Roths’ claims. Thanks to Robert Truchick for his contribution to this post.     Previous Next Contact

News Technology Is Evolving – Data Privacy Laws Are Finally Catching Up July 8, 2022 < Back Share to: On June 21, 2022, the American Data Privacy and Protection Act (ADPPA) was released by the House Committee on Energy and Commerce. The purpose of the Act is to instill uniformity among members of the privacy community and those impacted by privacy legislation. Because states have enacted their own privacy laws, uniformity among multi-state sectors is long overdue. The Act is the first bipartisan, and bicameral comprehensive privacy and data security proposal. Further, the practical purpose of the bill is as follows: (1) provide consumers with foundational privacy rights – such as requiring affirmative consent to allow companies to share sensitive and private information; (2) create oversight mechanisms to ensure data is properly stored and protected; and (3) to establish meaningful enforcement. While this is not a complete list, this legislation proposes pivotal changes in the following areas: (1) protecting the rights of children and minors by monitoring marketing directed at minors; (2) requiring the Federal Trade Commission to establish a publicly available central registry of data brokers whose principal source of revenue is derived from processing protected data; (3) requiring all non-exempt entities to appoint a Chief Privacy Officer subject to annual executive certifications and biennial audits; and (4) establishing a uniform standard of industry-based terminology such as “sensitive data”. It is no secret that technology evolves faster than legislators create laws, however the American Data Privacy and Protection Act is well overdue to protect consumers, as well as entities, from unfair and invasive data collection practices. Thanks to Paige Baldwin for her contribution to this article. Should you have any questions, please contact Matthew Care. Previous Next Contact