Hot Dogs Are Very Dangerous.

Few things seem as wholesome or, as all-American, as a nice hot dog. However, fresh on the heels of lawsuits that claim hot dogs are carcinogenic — http://articles.latimes.com/2009/jul/23/business/fi-hot-dog23 — comes a new assault to this beloved American icon. According to The American Academy of Pediatrics, hot dogs are very dangerous and their shape may need to be changed. In a just released policy statement on the Prevention of Choking Among Children (PDF), the Academy warned that, due to their “cylindrical, airway sized, and compressible” nature, hot dogs are one of (along with grapes) the foods on which little Billy is most likely to choke and die. To deal with this “problem”, since the choking warnings labels on many hot dog packages and common sense are apparently insufficient, the Academy recommends that the hot dog and other similarly shaped meat products, be redesigned. So instead of that perfect cylinder shaped dog that fits so perfectly in Billy’s bun, you could have a starfish shaped hot dog…or even a dog that resembles an octopus. Just imagine — the possibilities for redesign (and lawsuits) are endless.

If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.

Special thanks to Sheila Osei for her contributions to this post.

http://pediatrics.aappublications.org/cgi/content/abstract/peds.2009-2862v1

US Supreme Court Issues Important Product Liability Decision.

When litigating a claim, if the parties reside in different states, the claim may be brought in federal court, as opposed to state court, under diversity of citizenship grounds. If an action is brought in state court, and diversity of citizenship exists, the parties may request that the case be removed from the state court to the federal court. The issue of diversity is important since, most plaintiffs prefer to sue in state court, where the “home town” advantages are much more real, and thus defendants often try to remove the case to federal court.

In a unanimous ruling on Tuesday, February 23, 2010, the United States Supreme Court has determined that for the purposes of diversity of citizenship, a corporation will be deemed a resident of the state only where the company’s executives maintain their offices. The Court held that the “principal place of business” is located at the “corporate headquarters” or “nerve center” where the corporation’s officers “direct, control, and coordinate the corporation’s activities.”

This is an important ruling because although a corporation could sell their products in all fifty states, that corporation cannot be considered a resident of any state its products are sold, except the state in which its corporate headquarters is located. If someone claims they bought a defective product in their home state, they can no longer “hometown” the corporation in a product liability suit by bringing their action in their home state court. If the litigant attempts to gain the hometown advantage by commencing the action in state court, the corporation will be able to swiftly remove the case to federal court on the basis of diversity of citizenship.

Effectively, this ruling provides corporations with another strategic avenue to increase the likelihood of fair litigation, without the claimant obtaining the hometown advantage. This ruling may also change the structure of class action suits, where one representative member is chosen from the class for the purposes of determining diversity. If the class wants to litigate in state court, the only state court option will be that state where the corporation is headquartered, and the representative of the class will have reside in the same state as the corporation. Corporations selling products in many states should be prepared to ask for removal to federal court any time they are sued in state court, and should expect to see an increase in federal litigation as a result of this decision.

If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.

Special thanks to Alison Weintraub for her contributions to this post.

http://www.supremecourtus.gov/opinions/09pdf/08-1107.pdf

Rotten Tomatoes – Used for Food, Not Just Bad Acting.

SK Foods is one of the largest tomato processors in the United States. It appears that one reason for its growth was not the quality of its tomatoes, but rather the quality of its graft. According to published reports, over the last several years, SK Foods has been shipping contaminated (with things like mold) and below standard (e.g. unacceptable levels of acidity) product to some of the largest food companies in the United States. SK Foods was selected by companies like Kraft and B&G Foods because these companies’ purchasing agents took bribes in exchange for selecting SK Foods as a vendor. It does not appear that use of the contaminated food products has resulted in a documented case of sickness, but the American legal system being what it is, lawsuits against companies like Kraft and B&G Foods seem likely.

If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.

http://www.nytimes.com/2010/02/25/business/25tomatoes.html?ref=business

Even NY Scaffold Law Has Its Limitations

New York’s Labor Law §240(1), commonly known as the Scaffold Law, imposes strict liability on building owners and general contractors for injuries sustained by workers caused by a falling object (or a falling worker), if that fall was due to failure to erect protective scaffolding, hoists, ladders, etc. The strict liability aspect of this statute makes it very difficult for owners and general contractors to avoid responsibility for injuries at worksites. Essentially, if a person is injured at a worksite, either by falling from an elevation or because something fell from an elevation onto them, failure to have properly secured that person or object triggers §240(1).

In Garzon v. Metropolitan Transportation Authority, the First Department’s decision demonstrates that the Scaffold Law has its limits. The plaintiff worker was injured when a caulk gun fell and somehow injured him after he had left it on a rung of the ladder. Plaintiff cited Labor Law §240(1), arguing that an improperly secured object fell, causing him the falling object caused personal injury.

The Court granted defendants’ motion for summary judgment as to Labor Law §240(1), as the plaintiff presented no evidence that a faulty ladder (or lack of a ladder) was the proximate cause of the injury. The Court also put the reins on the Scaffold Law to some extent, holding that the “falling” of this object was not within the prescribed application of the law. The Scaffold Law was drafted to mandate that when elevations are involved in worksites, proper steps should be taken to secure persons and objects from falling. The Court ruled that this injury was not related to the elevation of the caulk gun, which is the type of scenario to which the Scaffold Law should apply. Accordingly, the court held that just because the injury here happened to involve a ladder and a falling caulk gun should not automatically trigger strict liability under §240(1).

Thanks to Brian Gibbons for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_01540.htm

NY Appellate Division Rules Leaseholder Can Be Responsible for Sidewalk Fall

In Abramson v. Eden Farms Inc., the plaintiff tripped and fell over a cracked portion of the sidewalk abutting a store leased by Eden Farm. The plaintiff brought an action against Eden Farm for the personal injuries she suffered in her fall.

Eden Farm moved for summary judgment arguing that it did not create the alleged defect in the sidewalk and that, as a leaseholder, it did not have a statutory duty to maintain the sidewalk in a reasonable safe condition. The trial court denied the motion and Eden Farms appealed.

Upon appeal, the First Department affirmed the denial of Eden Farms motion. In its decision, the court noted that Eden Farm had ignored the provision of its lease that required Eden Farms to make all repairs and replacements to the sidewalks and curbs adjacent to the store. The First Department also found that there was a legal question whether the lease was “comprehensive and exclusive” that it would have reassigned the landowner’s duty to maintain the sidewalk to Eden Farm.

Thanks to Katusia Lundi for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_01418.htm

NY Appellate Division Rules Address of Defendant Corporation Determines Venue

In Biaggi & Biaggi v. 175 Medical Vision Properties LLC, plaintiffs brought suit for breach of contract and fraud in Westchester County. Defendants cross-moved for a transfer of venue to Kings County, which the lower court granted.

Plaintiffs appealed the transfer of venue on the basis of CPLR 510(1) and 510(3). They argued that venue is proper in any county in which any of the parties resided at the time of commencement, and that the corporate defendants were residents of Westchester County at the time of commencement. Plaintiffs produced the corporate defendants certificate of incorporation, demonstrating a principal office address in Westchester County. Corporate defendants produced no evidence that the certificate was incorrect or had otherwise been amended and thus the Appellate Division held that Westchester was the proper venue for the action.

Thanks to Alison Weintraub for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_01448.htm

Muffin Man Stuck.

We previously reported on the strange case of Bimbo Bakeries and Thomas’s English Muffins — http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=492. The court has now ruled. The muffin man cannot leave his old job to begin a new life.

http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202443627690&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20AM%20Legal%20Alert&cn=TLI_AM_LegalAlert_20100217&kw=Secret%20Muffin%20Recipe%20Prevents%20Executive%20From%20Switching%20Jobs&slreturn=1&hbxlogin=1

Judge Lippman Redux

New York’s new Chief Judge continues to tilt toward plaintiffs and claimants, a trend we first reported in this space yesterday.

Now this. In 2006, a conductor on a NYC subway train assaulted a subway customer. Let’s back up. The episode began when a rider complained about subway service. The conductor reacted to this complaint by calling the rider a “faggot.” The rider responded by attributing some sexual ambiguity to the conductor’s late father. So, the conductor grabbed the rider by the neck and slung him around for a bit.

The Transit Authority terminated the conductor. The case went to arbitration pursuant to the collective bargaining agreement between the Transit Authority and the union. The collective bargaining agreement provides that in cases of assault, the arbitrator shall affirm the Transit Authority’s choice of punishment (i.e., termination in this case) unless there is “credible evidence that the action by the [Transit] Authority is clearly excessive……” The arbitrator here found that termination was “clearly excessive” and gave the conductor his job back. The Transit Authority appealed.

The Court of Appeals, in a decision by Judge Lippman, has now upheld the arbitrator’s decision, and all New Yorkers are advised to keep their complaints about the subways to themselves.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_01378.htm

Fantasia’s Fall on the Ice

Fantasia Massey went to Newburgh, NY to visit her friend Michael Valerie on Sunday, March 11. The visit went well and Fantasia remained inside Mike’s apartment without once venturing outside until 9:30 p.m. on Thursday, March 14, when she felt the need to visit a local convenience store. Mike drove Fantasia to the store. He parked his car on the street in front of the store. Fantasia got out of the car and, she says, slipped and fell on ice on the sidewalk in front of the store. She fractured her ankle. She filed suit against the owner of the convenience store. http://www.courts.state.ny.us/reporter/pdfs/2010/2010_30238.pdf

The defendant moved for summary judgment, supporting its motion with an expert affidavit and data that showed that the temperature at the time of the accident was 57 degrees and that it had been as high as 73 degrees earlier that day. The expert who interpreted this arcane data opined that there could not have been any ice on the sidewalk during Fantasia’s ill-fated trip outside the apartment.

The plaintiff countered with her own affidavit, swearing that there was, indeed, ice on the sidewalk. Mike swore to the same. They produced photographs of ice on the sidewalk that they said they took two hours after the fall.

The court in New York County denied the defendant’s motion, finding a question of fact about the existence of ice.

Posted by Maju Varghese.

NJ App. Div. Interprets Notice Of Other Actions Requirement In Complaints.

In Kent Motor Cars, Inc. v. Reynolds and Reynolds, the New Jersey Appellate Division held that the trial court erred in dismissing a successive action since the defendant failed to establish that it was substantially prejudiced by the plaintiff’s failure to comply with its Rule 4:5-1 ( b) notice obligations.
Rule 4:5-1 (b) requires that a party provide notice it its first pleading of the names of other potentially liable parties. The failure to comply with this notice can result in dismissal if the failure to provide notice was inexcusable and the undisclosed parties right to defend the succesive action was substantially prejudiced.
The Court found that the undisclosed defendant was not in a worse position defending the successive claim than it would have been in defending the first action.

www.judiciary.state.nj.us/opinions/a5246-07.pdf