Parental immunity shields a parent from liability for negligent supervision but not for willful or wanton failure to supervise. Yet, even where negligent supervision is claimed, the immunity will only apply where the parent’s conduct implicates customary child-care issues or a legitimate exercise of parental authority or supervision.

The distinction was recently addressed by a New Jersey Appellate Court in Thorpe v. Wiggan. The case involved the tragic death of a four year old child who was left in a smoke filled car strapped in his car seat, with no means of escape when the car became engulfed in fire. The father, who suffered significant burns over his body, gave two conflicting statements about the events that led to his son’s death. In the version accepted for purposes of an in limine motion, the father described leaving his son in the car while he got out to inspect the source of the smoke. When the car burst into flames, he was unable to get his son out. The court reasoned that the father was not immune from negligence in this case where the father’s actions had nothing to do with a parent’s “unique philosophy of child-rearing” or the parent’s care for his child’s physical, moral, emotional, and intellectual growth. It simply had to do with a parent who failed to remove his son from the car before the fire erupted.

Thanks to Denise Ricci for her contribution.

http://lawlibrary.rutgers.edu/courts/appellate/a1995-07.opn.html

Most courts are uncomfortable strictly applying New York’s law of the issue of late notice. There are a number of exceptions to the general rule that an insured risks the loss of its insurance coverage if it fails to provide timely notice of an occurrence to its insurer. Sometimes it seems that the exceptions can swallow up the general rule. (As of January 2009, New York law now requires insurers to establish prejudice in order to disclaim coverage on the basis of late notice.)

The New York Appellate Division, First Department has spoken again regarding the failure to provide timely notice on the basis of the insured’s “good-faith belief of non-liability.” In this case, the manager of the insured, a diner, was allegedly informed that a woman had slipped in the parking lot. When the manager went outside he saw the woman on the ground. The woman’s husband told the manager “not to worry” because his wife had tripped over her shoelaces. The wife said “she was clumsy and fell.” The manager informed the couple he was going to get a pen to get their information but when he came back out the couple had departed.

Five months later, the woman sued the diner for personal injury. The insured then notified its carrier of the claim. After the insurer disclaimed coverage on late notice grounds, the insured commenced this declaratory judgment action. The lower court dismissed the action based on the policy’s late notice provision. However, the Appellate Division reversed because the insured had a good faith basis for believing there was no liability. Specifically, the husband’s comment to the diner manager not to worry and the wife’s statement that she was clumsy, followed by the couple’s departure before the manager could obtain further information was grounds for the manager’s good faith belief that there was no liability.
Our concern with this decision is that the insured’s excuse is apparently based on statements its manager attributes to the plaintiffs — statements that are self serving from the standpoint of the insured. It is unclear whether there was any corroboration that such statements were made, and the insurer is seemingly stuck defending the insured based solely the word of the insured.

Thanks to Mendel Simon for his contribution.

http://www.courts.state.ny.us/courts/ad1/calendar/appsmots/2009/January/2009_01_20_DEC.pdf

In Polarome International, Inc., v. Greenwich Insurance Company and Zurich Insurance Company, the New Jersey Appellate Division reaffirmed that insurers may disclaim coverage during the course of an underlying lawsuit when discovery reveals the claim is not covered.

Plaintiff was sued by employees exposed to toxic torts over a number of years, and plaintiff’s insurers accepted the defense under a reservation of rights. During the underlying litigation, the insurers disclaimed coverage after obtaining information that the alleged losses occurred outside the policy period. The Appellate Division held that an insurer may use extrinsic facts to go beyond the pleadings to determine that there is no coverage, and that an insurer is only estopped from withdrawing from a defense that it initially assumed if the insurer was aware of evidence indicating that the claim was not covered and failed to notify its insured promptly that it was reserving its right to withdraw.

Thanks to Mendel Simon for his contribution.

http://lawlibrary.rutgers.edu/decisions/appellate/a0566-07.opn.html

Owners of one and two-family homes are typically exempt from Labor Law §240 and 241, except in situations where they “direct or control” the work. In Snyder v. Gnall, the Third Department in New York recently held that despite clear involvement by the owner in the construction project, his actions did not rise to the level of direction or control.

The owner was identified on the building permit as the general contractor; he personally arranged for building inspections; he hired all contractors and sub-contractors; and he ordered and paid for certain building materials. However, because all of these activities took place pursuant to directions or recommendations set forth in plaintiff’s comprehensive proposal, the Court held the owner’s participation was not as significant to support the conclusion that he directed or controlled the work. The claims were thus dismissed.

Snyder v. Gnall

In Zimmerman v. Bd. of Ed., a Bronx Supreme Court judge recently found that a jury’s failure to award damages for future pain and suffering, future lost wages and for a loss of consortium claim was substantially unjust and against the weight of the evidence.

Plaintiff, a teacher, was injured when falling backward on her head while separating two students in a fight. The jury awarded plaintiff $100,000 for past pain and suffering and $300,000 for lost wages. In deciding that this was insufficient, the Court looked to the uncontroverted medical evidence that plaintiff’s condition was severe and permanent, and that she could not return to work because of her inability to control her seizures. The Court also looked to other cases involving traumatically induced epilepsy, all of which involved settlements or awards well into the millions.

The Court thus granted plaintiff’s motion for a new trial on damages, unless the defendant was willing to stipulate to a judgment of more than $1.3 million — nearly a million more than the jury’s award. A lesson that sometimes, even a brilliant trial verdict may wind up a pyrrhic victory.

Thanks to Stephanie Chen for her contribution.

http://www.nycourts.gov/reporter/3dseries/2008/2008_52518.htm

The Fourth Department’s recent February 2009 decision in Williams v. Clinton Central School District, upholds New York’s long-standing assumption of risk doctrine. In this case, Williams, a high school senior, commenced suit against her school district for injuries sustained while performing a cheerleading stunt. She alleged that the school unreasonably increased the risk of injury by failing to provide a matted surface during practice. In upholding the dismissal of plaintiff’s complaint, the Fourth Department held that although the school district was under a duty to exercise reasonable care to protect student athletes, the risk of performing cheerleading stunts on a non-matted surface was open, obvious, and inherent in plaintiff’s participation in the activity.

Thanks to Lora Gleicher for her contribution to this post.

http://www.nycourts.gov/reporter/3dseries/2009/2009_00742.htm

In Mulvihill v. Brooklyn Law School, the construction worker plaintiff was struck by falling wood pieces that were being used to support a concrete superstructure. The plaintiff sued alleging various Labor Law violations. The defendants moved for summary judgment seeking dismissal of the Labor Law § 240(1) claim arguing that the wooden pieces that fell were not being hoisted or secured and did not fall because of the absence of a safety device. The plaintiff cross-moved for partial summary judgment arguing that liability in cases such as this is not limited to instances where the object is being actively hoisted or secured at the time it falls. The court granted plaintiff partial summary judgment, holding that the defendants’ failure to utilize a safety device to catch the falling wood was the proximate cause of plaintiff’s injury.

Thanks to Edward Lomena for his contribution to this post.

http://www.nycourts.gov/reporter/3dseries/2009/2009_50120.htm

In its recent decision in Ogborne v. Mercer Cemetery Crop., 2009 WL 196047 (2009), the New Jersey Supreme Court concluded that when the facts are reasonably debatable as to whether the employee’s actions or the condition of the property caused plaintiff’s accident, then the more stringent “palpably unreasonable” standard applies. Pursuant to the New Jersey Tort Claims Act, plaintiffs suing a public entity for a dangerous condition on its property must prove that the entity acted “palpably unreasonably” in not protecting against the dangerous property condition. By contrast, when a public employee’s actions cause plaintiff’s injury, the plaintiff need only prove ordinary negligence. In Ogborne, the plaintiff was accidentally locked inside a cemetery when a cemetery employee closed the entrance gates early. Thus, she was forced to climb a brick wall in order to exit, fracturing her tibia in the process. In keeping with the broad immunity provided in the Tort Claims Act, the Supreme Court determined that the higher “palpably unreasonable” standard should apply in determining the public entity’s liability.

Thanks to Claudi Condruz for her contribution to this post.

http://www.judiciary.state.nj.us/opinions/supreme/Supreme%2008.pdf

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

On January 6, 2009, the New York Supreme Court granted a plaintiff’s motion for summary judgment in a contract dispute that arose over the term “visitor.” The defendant agreed to advertise on the plaintiff’s website provided the plaintiff had 36,000 visitors to the site. The plaintiff met this number, although the “visitors” may have included repeated users of the site. The defendant argued that the term “visitor” in the contract, referred to “unique visitors” and not repeat users. The court disagreed noting that the determination of whether a term in a contract is ambiguous is a question of law. Although the term visitor was not defined in the contract, the court believed that the plain meaning was unambiguous. Accordingly, the court granted plaintiff’s motion.

Thanks to Bill Kirrane for his contribution on this post.

http://decisions.courts.state.ny.us/fcas/FCAS_docs/2009JAN/3001028302008001SCIV.pdf