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News Prior Accidents Admissible In School Gate Mishap (NY) June 23, 2017 < Back Share to: In Martin v Our Lady of Wisdom Regional Sch. New York's Appellate Division addressed the discretion of a trial court to allowing evidence of prior accidents to establish a party's negligence. In April 2009, when the plaintiff was an eighth-grade student at Our Lady of Wisdom Regional School, he and another student were assigned, without supervision, the task of closing a sliding gate to the school parking lot. When the plaintiff hung on the gate as it slid closed, a wheel mechanism at the top of the gate severed the tips of two fingers. At a trial, the Suffolk County Supreme Court permitted testimony, over the school’s objection, from a retired school nurse detailing other accidents involving the gate, and the jury found the defendants 100% at fault in the happening of the accident. A $600,000 judgment was entered in favor of the plaintiff. The defendant appealed, arguing that the trial court erred in allowing evidence of the prior accidents. The Appellate Division’s decision addresses situations when proof of prior accidents is admissible and affirmed the decision holding that proof of a prior accident “is admissible only upon a showing that the relevant conditions of the subject accident and the previous one were substantially the same." The Appellate Court noted that the plaintiff presented evidence that three other children had injured their hands in accidents involving the gate, which was not significantly altered between the occurrence of those accidents and the plaintiff’s accident. As such, the Court found that the evidence was shown to be reliable and probative on the issues of dangerousness and prior notice, and the Supreme Court did not improvidently exercise its discretion in admitting it. Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Settlement Reached Over $100 Million Picasso Sculpture (NY) June 24, 2016 < Back Share to: A hotly contested and widely followed lawsuit involving the Gagosian Gallery, billionaire investor Leon Black and a $100 million Picasso sculpture was recently resolved, and the reports indicate the settlement involved Black keeping the sculpture. In January of 2016, the Gagosian Gallery sued to quite title over the 1931 Picasso work, Bust of a Woman. The gallery claimed that it had exhibited the work for the previous owner, Picasso's granddaughter, Diana Widmaier Picasso, for the purpose of finding a buyer. Eventually, the gallery reached a deal with Diana to purchase the work for more than $100 million for resale to one of its clients (later revealed to be Leon Black). However, while the work was on loan at MoMA, the gallery learned that Pelham claimed it had purchased the work for approximately $42 million, so the gallery sued for a declaration that it was the rightful owner. Pelham counter claimed, alleging that it had previously reached a deal to buy the work from Picasso's grandson Olivier Widmaier Picasso and his mother, Maya Widmaier Picasso. Pelham alleged the work was purchased on behalf of the Qatar royal family for the Qatar Museums Authority. However, when Diana learned of the sale, she convinced Maya to repudiate the deal with Pelham so that she could try to strike a better deal with her "ally," Larry Gagosian. It was alleged that the gallery's claims that it was unaware of the deal with Pelham were false, as had the gallery done any due diligence, it would have known of the deal. Instead, it was claimed that the gallery struck a secret side deal to buy the work and conspired with the Picassos in claiming that Maya had a temporary mental incapacity that made the Pelham deal invalid. Unfortunately for the art law community, these interesting claims will not be developed further as it appears as if the Picasso's paid Pelham to make this matter go away, with Black keeping the painting. But no doubt a new art controversy will soon replace this one. Please write to Mike Bono for more information. Previous Next Contact

News Fireworks Accident Only One Occurrence (PA) March 31, 2017 < Back Share to: In Hollis v. Lexington Insurance Company, a Pennsylvania federal court was faced with determining how many "occurrences" were triggered under an insurance policy, which can dramatically impact the amount of available coverage. Plaintiff Kathleen Hollis and her two children were injured during a fireworks show when a mortar unexpectedly was launched into the crowd. Plaintiffs alleged that the fireworks company, its president, and another employee committed 19 breaches of duty resulting in the injuries. Those breaches included negligently selecting and purchasing the fireworks, violating laws and regulations in the import of the fireworks, failing to test the fireworks before deployment, disregarding indications that the location for the fireworks show was unsafe, failing to set the crowd back at a safe distance from the launch area, negligently training employees, and other similar allegations. In the declaratory judgment action against Lexington Insurance Company, the Court was tasked with determining whether the allegations constituted a single occurrence, or as the claimants alleged, 19 separate occurrences under the fireworks company’s insurance policy to correspond with the number of duties that fireworks company allegedly breached. The insurance policy had a $1 million limit per occurrence and a $2 million aggregate limit. The insurer moved for summary judgment, saying that there was a single occurrence, and the injured claimants cross-moved. The trial court found in favor of the insurer, and the claimants appealed. On appeal, the Fourth Circuit found that Pennsylvania law applies a cause approach to defining what constitutes an “occurrence.” Under the cause approach, there is a single occurrence if there was one proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damage. The Fourth Circuit noted that, regardless of the number of alleged negligent acts or victims, all the injuries had a single proximate cause — the misfired firework. Since all the injuries only had one cause, the Court affirmed the trial court’s decision and held that only one occurrence took place. Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Scalding Hot Coffee Obviously No Cause For Claim (PA) April 13, 2016 < Back Share to: A patron enters a convenience store. She brews a cup of cappuccino at a self-serve machine and properly covers it with a lid. Wallet in hand, she grabs the cup of hot cappuccino and walks to the refrigerated cooler to make further selections. She extracts a Gatorade and a bottle of iced Starbucks coffee. She tucks the hot coffee between her forearm and chest while cradling the ice coffee and Gatorade and holding her wallet as she bends down to pick a pack of gum. What could go wrong? Of course, as she reaches for the gum, the cappuccino slips and scalds her arm and breast. In Soohey v. Sheetz, Inc.., the plaintiff alleged that the store was liable for her mishap for failing to provide a shopping basket, for “making customers carry hot beverages,” and for failing to warn of the risks inherent in carrying a hot beverage. She claimed that the store had a duty to her to protect her from danger. In summarily dismissing the claim, the court disagreed. While a landowner owes a duty to use reasonable care to protect against a known danger that a user might not appreciate, a store is not an insurer of its patrons for conditions whose danger is obvious. Both the trial court and affirming appellate court found that the lack of shopping baskets was clearly known and obvious and the plaintiff could easily have avoided harm by taking reasonable care, by not attempting to carry too many items, and certainly by not tucking a hot cup of coffee between her forearm and breast. These were all open and obvious conditions. Thanks to Erin Connolly for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News "Borrowed Employee" Status Remains Question of Fact in Pennsylvania December 20, 2013 < Back Share to: Recently, the Pennsylvania Superior Court reiterated that the employment status of a “loaned” laborer is a question of fact with respect to the applicability of the workers compensation bar. In the case of Shamis v. Moon, the plaintiff was the direct employee of a general contractor charged with overseeing the expansion of the Pennsylvania Convention Center in Philadelphia. More specifically, the plaintiff alleged in his complaint that he was “loaned” to a demolition subcontractor working on the project, and sustained severe injuries when an employee of the same ran him over with a dump truck. In light of his injuries, the plaintiff filed a workers’ compensation claim against the general contractor, and later sued the subcontractor and its employee in the Pennsylvania Court of Common Pleas. In responding to the plaintiff’s allegations, the subcontractor eventually moved for summary judgment and asserted that it was also the plaintiff’s employer for the purposes of the workers’ compensation bar under the “borrowed employee” doctrine. To this end, the subcontractor presented evidence from the record indicating that it, not the general contractor, actually supervised the expansion and directed the plaintiff in his duties. Perhaps surprisingly, the Philadelphia trial court agreed and granted summary judgment on the basis of the workers’ compensation bar. On appeal to the Pennsylvania Superior Court, the plaintiff argued that the trial court erred as a matter of law when it applied the “borrowed employee” doctrine. Specifically, the plaintiff argued that Pennsylvania law recognizes the doctrine only when there is sufficient evidence that the employee “passed under the [putative] employer’s right of control with regard to the work to be done and the manner performing it.” According to the plaintiff, however, the record in Shamis was conflicted in respect of the general contractor’s right of control vis-à-vis the defendant subcontractor. In particular, the plaintiff noted to the Superior Court that although he took direction from the subcontractor, the general contractor maintained a contractual right and obligation of supervision that called into question his employment status for purposes of the workers’ compensation bar. In ultimately endorsing the plaintiff’s position, the Superior Court agreed that questions regarding “borrowed employees” are intrinsically fact sensitive and rely heavily on factors that should be considered by a jury. As a result, the Superior Court reversed and remanded the matter to the court below for further discovery and trial. Shamis is a reminder that while the “borrowed employee” doctrine may serve as a viable bar to workplace injury claims in Pennsylvania, the defense requires a significant and detailed factual basis in order to succeed. Thanks to Adam Gomez for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com . Previous Next Contact

News Proof of Regular Inspections Results in Dismissal of Premises Case (NY) January 12, 2017 < Back Share to: In Isaacs v Federated Dept. Stores, Inc., the Second Department recently discussed how regular maintenance and good record keeping can help defendants meet their burden to on issues of constructive notice. The case arises from injuries allegedly sustained by plaintiff while riding an escalator at a Macy’s Department Store in Brooklyn, NY. According to the plaintiff, a broken and protruding piece of metal caught onto her purse strap and caused her to fall. Plaintiff commenced the action against defendant Macy's (Federated Department Stores), who subsequently commenced a third-party action against Thyssenkrupp Elevator Corporation (Thyssenkrupp). Macy's sought indemnification and contribution from Thyssenkrupp on the basis of their contract for escalator repair and maintenance. After discovery, Macy's moved for summary judgment to dismiss the complaint, arguing that it did not have notice of the allegedly dangerous escalator condition. The Supreme Court denied Macy’s motion. On appeal, the Second Department reversed, reasoning that as property owner, Macy's submitted prima facie evidence that it did not create or have actual or constructive notice of the alleged defect. In New York, a defendant is said to have constructive notice of a defect when the defect is visible and apparent and it existed for a “sufficient length of time before the accident that it could have been discovered or corrected.” Accordingly, to meet its burden on the issue of constructive notice, a defendant must offer some evidence regarding the last time the site was inspected prior to the plaintiff’s accident. Macy's proof was specific and persuasive. Through the deposition testimony of a Thyssenkrupp technician and escalator inspection logs, Macy's established that it inspected the escalator regularly and that there were no prior complaints regarding the escalator. In addition, a Macy’s employee testified that he inspected the escalator hours before the plaintiff’s injury and that he did not observe any defect. In opposition, the plaintiff failed to raise a triable issue of fact – i.e., that the alleged condition existed for a long enough period of time to put Macy’s on constructive notice. Accordingly, the Second Department held that the Supreme Court should have granted Macy’s summary judgment motion and dismissed the plaintiff’s complaint. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Social Networks Impact Legal System September 7, 2010 < Back Share to: Back in March, we commented on how a juror sent a facebook "friend request " to a witness during a Bronx homicide trial, thereby potentially compromising the verdict. (The verdict was overturned, but for unrelated reasons.) http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=539. Not surprisingly, a recent study shows that judges are now getting in on the action, regularly accessing facebook and other social networking sites. http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202471398982&src=EMC-Email&et=editorial&bu=National%20Law%20Journal&pt=NLJ.com-%20Daily%20Headlines&cn=20100901NLJ&kw=Are%20judges%20using%20Facebook%3F. According to a survey recently conducted by the Conference of Court Public Information Officers, most judges who use such sites do so only for personal reasons (i.e., family pictures, etc...) , as opposed to professional ones. In addition, the survey found that judges are being "mindful of the canons" involved is such sites, such as friend requests from attorneys and even witnesses or jurors. Along those lines, several state judicial ethical committees prohibit judges from "friending" on Facebook the lawyers who appear before them. Given the technological age in which we live, judges will need to at least gain a working understanding of these sites in order to rule effectively. That said, being "mindful of the canons" is a sound practice, especially given the unregulated nature of these sites. Social networking is not without risks, as even a seemingly innocent "friend request" can generate the appearance of impropriety. This rationale definitely applies to some professions (educators come to mind) more than others. Thanks to Brian Gibbons for his contribution to this post. Previous Next Contact

News Trivial Defect Defense Prevails In New York Trip And Fall Case January 28, 2022 < Back Share to: In Dingman v. Linchris Hotel Corp., the Second Department recently addressed whether the condition that caused a fall down accident was too “trivial” for the defendant to be held liable. Plaintiff in that case alleged that she sustained personal injuries when she fell in the lobby of a hotel due to a quarter inch difference in elevation between tile and subfloor. The general contractor who was installing tiles at the time of the accident moved for summary judgment on the basis that the condition was too “trivial” to create liability. The Supreme Court denied the motion and the general contractor appealed. In evaluating the trivial defect defense, the Second Department stated that: “[A] defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact." The court went on to state that they will consider the "width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury." (Citations omitted). Based upon this standard, the court reversed the decision of the trial court and granted summary judgment, holding that the general contractor, through testimony and photographs, established that the height differential was “physically insignificant” and therefore had no liability. The Dingman decision serves as a reminder that not all trip and fall accidents result in liability exposure and that insurers and defense counsel should evaluate the potential for a trivial defect defense where an elevation difference is not significant. Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Plaintiff's Case Melts Away on Constructive Notice Against Wholesale Club (NJ) May 5, 2016 < Back Share to: In the winter climes of New Jersey, we never trust the weather forecaster, and always prepare for precipitation. In the case of Cortes v. BJs Wholesale Club, the commercial retailer successfully made it through the snow and summary judgment on the issue of constructive notice. The plaintiff, who had been shopping in the store for thirty minutes, slipped and fell on a two foot wide puddle of water within the BJ’s store, which allegedly stemmed from melted snow from an abandoned shopping cart in an aisle. The existence of the puddle was not disputed. However, the plaintiff was unable to establish how long the puddle existed, what caused it, or whether or not anyone else had encountered the puddle prior to her fall, such that the store may have been provided notice of the condition. BJ’s successfully demonstrated that it had maintained a routine inspection schedule, which included monitoring of hazards on the store’s floor. The District Court noted that regardless of the presence of the melted water, there was no evidence put forth by the plaintiff to support the theory that the store should have known that the puddle existed, and the plaintiff’s theory of constructive notice melted away. Thanks to Emily Kidder for her contribution to this post. Please email Mike Gauvin with any questions. Previous Next Contact

News NY's High Court Tilting Toward Claimants February 18, 2010 < Back Share to: Jonathan Lippman became New York's Chief Judge in January, 2009. After one year, it is now clear that he is moving the court to a more accepting and expansive point of view when rulling on personal injury claims. Lippman has already written decisions in several cases dealing with injured workers and, in each decision, has sided with the plaintiff. In one decision, Lippman found that a prior court ruling that prohibited an injured teacher's right to sue New York City was too restrictive and he expanded the teacher's avenues for recovery. In another case, he ruled that the trial court had too narrowly construed a law regarding a worker's right to seek damages from his/her employer. In sum, Judge Lippman's track record after his first year on the bench has been to expand plaintiffs' rights of recovery rather than to follow the narrower rulings that came down over the last 16 years under his predecessor. Posted by Georgia Stagias. http://www.nytimes.com/2010/02/18/nyregion/18lippman.html?scp=1&sq=court%20of%20appeals&st=cse Previous Next Contact

News Required or Simply Permitted to Live on Premises? The Distinction May Render the Action Within the Purview of the Workers' Compensation Law. May 22, 2012 < Back Share to: In Kerker v. Maple View Dairy, Inc., the decedent died in a fire while he slept in housing accommodations provided by Maple View. Maple View hired the decedent pursuant to a written farm work agreement. The English version of the agreement stated that the decedent was required to sleep on the premises as a condition of employment. The Spanish version of the agreement, which the decedent purportedly signed, contemplated sleeping arrangements, but did not state that it was a requirement of the job. The court stated, "if the employee is required to live on the premises either by virtue of the contract of employment or by reason of the nature of the employment, any injury resulting from normal activities on the premises is compensable under the Workers' Compensation Law ." "On the other hand, if the employee is on the premises solely out of the kindness of the employer, injuries are not compensable" under the workers' compensation law, and thus not barred by Workers' Compensation Law §11. Here, the court could not determine as a matter of law that the decedent was required to sleep on the premises as part of his job, thus it was not clear that he was injured during the course of his employment. Accordingly, the court denied Maple View's motion to dismiss the complaint on the basis of the Workers' Compensation Bar. http://scholar.google.com/scholar_case?case=2878444439533808348&hl=en&as_sdt=2&as_vis=1&oi=scholarr   If you have any questions about this post or WCM's workers' compensation practice, please contact Cheryl Fuchs at cfuchs@wcmlaw.com   Previous Next Contact

News Does Texting Result in Punitive Damages? December 29, 2010 < Back Share to: The dangers of texting while driving are a fruitful source and typical topic of discovery in all motor vehicle cases. After all, if texting or cell-phone usage can be proven, the odds of proving distracted driving (and thus a better negligence case) also increase. One issue that has recently arisen is whether proof of texting opens the texter to a punitive damages claim. In Pennsylvania, the answer might be "yes." In the case of Deringer v. Li, an Allegheny trial court judge has recently suggested, in an unpublished decision, that texting might rise to the level of recklessness (as opposed to mere negligence) and thus open the texter to a punitive damages claim. We shall have to see if this decision is followed or endorsed by other Pennsylvania courts. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact