Wade Clark Mulcahy LLP

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

News Clear Unambiguous Policy Language Excludes Coverage February 23, 2017 < Back Share to: As every lawyer knows, there is no greater business asset than a well-drafted agreement, and insurance policies are no exception. Recently, in Rosa Pen, Inc. v. Selective Way Insurance Co., the Appellate Division for the Superior Court of New Jersey affirmed the trial courts granting of summary judgment in favor of Selective Way Insurance Company, finding that the express terms of the policy were unambiguous, despite Plaintiff’s strenuous arguments to the contrary. Plaintiff tendered a claim for property damage to Selective, alleging the damage had been caused by a sewer back-up. Selective retained an independent adjuster to investigate Plaintiff’s claim: the report noted the fact that Hurricane Irene had recently made landfall, flooding the area surrounding Plaintiff’s property, and filling the first floor of Plaintiff’s property with 36 inches of water. Plaintiff filed an affidavit disputing the report’s findings, stating that Irene caused absolutely no flooding or water at the property. Both the trial court and the appellate division were unconvinced by Plaintiff’s argument. However, the day was saved by the unambiguous and clear terms of the policy at issue, which specifically excluded any loss or damage from flooding, “regardless of any other cause or event that contributes concurrently or in sequence to the loss.” Where the terms of an agreement are clear, “they will be enforced as written.” Thus, the trial court reasoned that even giving Plaintiff every possible favorable inference by deeming at least some damage could have been caused by a backed-up sewer, the overwhelming evidence that Hurricane Irene had flooded the surrounding area, and the well-drafted exclusion in Selective’s policy, meant that Plaintiff’s claim was properly disclaimed as a matter of law. Thanks to Vivian Turetsky for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a3827-14.pdf     Previous Next Contact

Time Out This page isn’t available right now. But we’re working on a fix, ASAP. Try again soon. Go Back

Time Out This page isn’t available right now. But we’re working on a fix, ASAP. Try again soon. Go Back

Time Out This page isn’t available right now. But we’re working on a fix, ASAP. Try again soon. Go Back

Time Out This page isn’t available right now. But we’re working on a fix, ASAP. Try again soon. Go Back

Time Out This page isn’t available right now. But we’re working on a fix, ASAP. Try again soon. Go Back

Time Out This page isn’t available right now. But we’re working on a fix, ASAP. Try again soon. Go Back

Time Out This page isn’t available right now. But we’re working on a fix, ASAP. Try again soon. Go Back

Time Out This page isn’t available right now. But we’re working on a fix, ASAP. Try again soon. Go Back