The BP Gulf Coast oil spill is a calamity of the first degree. It has already spawned litigation in the US — http://www.bloomberg.com/news/2010-06-15/bp-oil-spill-lawsuits-spread-to-states-beyond-gulf-coast-as-losses-mount.html — although that litigation has been largely confined to the South. In a warning shot, the Attorney Generals of Connecticut, Maryland, Delaware, Georgia, Maine, Massachusetts, New Hampshire, New York, North Carolina, Rhode Island and South Carolina have advised BP that, if the oil hits the East Coast, litigation will follow. Indeed, in a show of just how serious these AGs are, they have advised BP of the necessity of implementing a litigation hold — as sure a sign as any that litigation looms. Perhaps BP should consider throwing a few more billion into that $20 billion “shakedown” fund.
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In Pennsylvania, the answer is “yes.” In the case of Sullivan v. Warminster Township, Carol and Bruce Sullivan brought a lawsuit against Warminster Township on behalf of their son Sean, who had been fatally shot by police on March 31, 2006 when police came to the Sullivan’s home to serve a warrant on Carol for various non-violent misdemeanors. Police called for backup upon learning that Sean was also in the home, as there were also outstanding warrants for his arrest as well. Sean refused to submit to arrest, and eventually attempted to escape through a window in the rear of the house. Sean hit the ground and began running, but was killed when police fired 56 shots. Sean’s mother witnessed this from the police car.
The Sullivans brought a federal lawsuit against the town, the police department and individual officers. One of the claims in the lawsuit was intentional infliction of emotional distress. In interpreting PA law (which had never formally stated that IIED was a viable tort), the federal court was left with the question of whether the tort was available to the Sullivans. The trial court (using 3rd Circuit precedent) adopted the Restatement (Second) of Torts, and held that the claim is available to “parties who witness outrageous conduct directed at close family members” so long as there is evidence of injury.
The question then arose — did Carol Sullivan have evidence of “injury”? The District Court noted that Carol Sullivan had witnessed Sean’s shooting from the police car in which she had been placed after her arrest. The trauma of watching this had caused her to allegedly develop post-traumatic stress disorder as a result. While the town argued that this was not a “physical injury”, as required in the Restatement, the Court disagreed, holding that “injury” is an element of any tort that must be proven with medical evidence. The Court specifically stated, however, that evidence of “physical injury” (as opposed apparently to mere mental trauma) was not required — at least not in the pleading stage. The Sullivan’s IIED claim was allowed to proceed.
Special thanks to Alex Niederman for his contributions to this post. If you have any questions, please contact Bob Cosgrove at .
In the case of Morton v. State of New York, Alan Morton was employed by the New York Water Service Corporation, which supplies water to various parts of Long Island’s Nassau County. Morton was part of a crew working to fix a leak in a below-ground water main located under a state highway. While applying a repair clamp, the wall of the trench in which Morton was standing gave way and buried his right leg thereby causing injuries. Morton sued the State of New York under various sections of the State’s Labor Law, including §241(6), alleging a violation of Industrial Code Rule 23-4, which requires banked or sloped sides or shoring and bracing of excavations that are five feet or deeper.
At trial, the trial court found that although the State was not on specific notice of the allegedly dangerous condition, N.Y. Lab. §241(6) imposed a non-delegable duty on the State (as property owner) to ensure compliance with the Industrial Code. The trial court further found that the Industrial Code had been violated and thus found for the plaintiff.
The trial court’s decision was revered on appeal because the Appellate Division reasoned that Department of Transportation regulations required that any work done on a state highway required a permit, and the water company failed to obtain a permit. Therefore, the Appellate Decision reasoned: (a) the State was not on notice of the dangerous condition, (b) Morton was not “a person employed at a work site” within the meaning of §241(6), and (c) since Morton was not employed at the work site, he could not benefit from the protections of the Labor Law.
The Court of Appeals has now affirmed the Appellate Decision, noting that ownership alone is not enough to impose §241(6) liability. The Court wrote that there must also be a nexus between the owner and work performed, such as a lease, easement, or other property interest — which in this case was allegedly lacking — all because of the lack of a permit. Morton’s case was therefore dismissed.
One wonders whether the Court of Appeals would have employed such a strict reading of the Labor Law if a private owner and not the State had been involved. Somehow, we doubt it. It just goes to show, you don’t bite the hand that feeds you — especially if you’re a judge who’s still looking for a raise.
Special thanks to Alex Niederman for his contributions to this post. If you have any questions, please contact Bob Cosgrove at .
Where an indemnitor receives notice of a claim against an indemnitee, the general rule is that the indemnitor will be bound by any reasonable good faith settlement the indemnitee might make. However, in Indemnity Insurance Company of North America v. St. Paul Mercury Insurance Company, the court did not follow the general rule. In an underlying personal injury action, the plaintiff, an employee of Yonkers Construction Company, was injured when Yonkers’ subcontractor Romano’s cable snapped. Yonkers’ had a contract whereby it was to defend and indemnify the City of New York, the owner of the property where plaintiff was injured. Romano’s contract in turn, required it to defend and indemnify the City and Yonkers. Romano’s primary carrier, Royal assumed the defense and indemnification of the City. At some point, Royal tendered the defense of the City to Royal’s excess carrier, Indemnity Insurance Company of North America (IICNA), as the injuries exceeded Royal’s $1 million dollar limit. During trial, IICNA settled the case for $3 million, with Royal contributing the first million and IICNA contributing $2 million. IICNA then sued Yonkers’ carrier St. Paul, as it was required to defend and indemnify the City. IICNA argued that St. Paul’s policy was primary to the IICNA excess policy, and thus it should reimburse IICNA the $2 million it paid. The court, however, held that “where the insurer did not take part in settlement negotiations or agree to the settlement of an underlying personal injury action, it was not required to contribute to that settlement.”
Thanks to Cheryl Fuchs for her contribution to this post.
It is this exact question that a New Jersey appellate court has just decided. In the case of Mitchell v. Capitol Management, Marilyn Mitchell’s one bedroom apartment in an 800 unit complex was indisputably infested with bedbugs. She sued the landlord on a negligence theory. At trial, the trial court directed a verdict for the defense holding that there was no evidence “about how the bed bugs got into her apartment or that the landlord was at fault.” An appeal resulted and the Superior Court, in an unpublished opinion, has just weighed in. The appellate division upheld the trial court and held that the plaintiff’s burden is to prove, at trial, that landlord negligence caused the infestation. Landlord negligence cannot be assumed merely because the bedbugs exist.
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In Hernandez v. 42/43 Realty LLC, the First Department upheld the lower court’s decision granting plaintiff’s summary judgment as to liability on her cause of action pursuant to Labor Law §240(1), stating that defendants failed to establish a question of fact as to the proximate cause of plaintiff’s injuries. In Hernandez, plaintiff was a field technician hired to install digital subscriber line jacks in residential building, which was accomplished by plaintiff ascending a ladder in the sub-basement, while a co-worker on the upper floor fed her the cable through the ceiling. On the date at issue, after plaintiff secured the ladder and climbed it, the ladder then shook and toppled over, causing her to fall and sustain injuries.
Defendant alleged that plaintiff provided two conflicting accounts of the event during her two depositions. However, the appellate court found that plaintiff’s deposition did not contain any significant conflicts. Furthermore, the appellate court noted that defendants had not produced any testimony from any person contradicting plaintiff’s version of what took place, nor did they produce any expert opinion concerning the lack of danger how plaintiff executed her job. The appellate court held that defendants had not supported their argument that there existed a question of fact with respect to their liability under Labor Law §240(1).
Thanks to Katusia Lundi for her contribution to this post.
Perry Milou is a pop artist — http://www.perrymilou.com/website/. To make himself better known, back in 2007, he decided to host an art exhibition and show entitled “Red Hot: The Art of Sensuality and Sexuality” — http://pdf.wcmlaw.com/pdf/Red Hot Website.pdf. The exhibition included art work and couple’s sessions on such topics as body piercing, pole dancing and spanking. The problem? His landlord at Rittenhouse Plaza in Philadelphia — one of the most prestigious buildings and locations in the City — didn’t want such an exhibition on its premises. He was told that if the exhibition went forward, his month to month lease would be terminated. So what did Mr. Milou do? He had the exhibition. And, his landlord terminated the lease. A press furor resulted. http://abclocal.go.com/wpvi/story?section=news/local&id=5746584 But then the public lost interest and the case went away, until, that is, this past February when Mr. Milou went legal. He claimed that his First Amendment rights had been violated. He made this claim by first alleging that he, an artist, was a member of a suspect class entitled to Sec. 1985 protection. When this didn’t work, he claimed that his landlord was acting under color of state law and made a Sec. 1983 claim. In a case with which we are quite familiar, the lawsuit has just been dismissed by USDC Judge Dalzell in the Eastern District of Pennsylvania. http://pdf.wcmlaw.com/pdf/Red Hot Opinion.pdf The decision is quite funny on its own (especially footnote # 1) and James Madison does not have to roll over in his grave.
If you would like more information about this post or WCM’s First Amendment defense practice, please contact Bob Cosgrove at .
In Ferguson v Shu Ham Lam, the Second Department examined a snow/ice related slip & fall from January 2001. While the Administrative Code of the City of New York § 7-210 creates a duty to remove snow and ice, that statute was not yet in effect in 2001. Nevertheless, an owner of property abutting a public sidewalk may be held liable for personal injuries sustained on that sidewalk if the owner undertook snow removal efforts that made the sidewalk even more dangerous than it would otherwise have been.
The onus, then, is on the defendant property owner to demonstrate that it did not worsen the condition of the sidewalk in its shoveling practices. Unfortunately for the owners (and their carrier), they maintained no employee/maintenance records whatsoever regarding who shoveled, when they shoveled and where they shoveled in relation to this sidewalk. According to the Court, the lack of documentation regarding the shoveling creates triable issues of fact as to whether the defendant/owner may have exacerbated the hazardous nature of the ice. Had they maintained work logs regarding the who/when/where of their shoveling practices, it seems they would have satisfied the Court’s standard for summary judgment. While the Court seems to mandate the unreasonable here (i.e., that the landowner prove a negative), work logs would probably have done the trick here.
Thanks to Brian Gibbons for his contribution to this post.
We have exciting news. As a result of your interest, we have decided to activate the comment feature of our “of interest” blawg. Effective immediately, if you are a registered “of interest” user, you will be able to post comments (or more specifically “replies”) on any post on WCM’s “of interest” website. We are hopeful that this will provide an opportunity for our friends and colleagues to share their ideas on pressing insurance related subjects.
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A New York trial court has ruled in a case of first impression that Zipcar is an automobile rental/leasing company and is therefore protected from vicarious liability by the Graves Amendment.
Zipcar is a membership-based business that provides cars to its members for an hourly or daily charge pursuant to a membership contract. In Minto v. Zipcar New York, Inc., (Supreme Court, Queens County, decided June 14, 2010), one Dale Douglas was driving a vehicle pursuant to his membership in Zipcar New York. He allegedly rear-ended the plaintiff, who brought suit for personal injuries he suffered in the accident. He sued Zipcar based upon New York Vehicle and Traffic Law section 388(1), which provides that a vehicle owner is liable for injuries resulting from the negligent use or operation of the vehicle.
Zipcar moved for summary judgment, citing the Graves Amendment, which provides that an owner who rents or leases a vehicle to another “shall not be liable under the law of any State…by reason of being the owner of the vehicle……” The plaintiff, for his part, argued that Zipcar was not a rental/leasing company and was therefore not protected by the Graves Amendment.
The court ruled that Zipcar was in the business of renting/leasing vehicles, notwithstanding its membership contracts and notwithstanding its advertisements that included lines like, “You could rent a car (but that would be silly)…” Given that Zipcar is in the rental/leasing business, the court concluded that it was cloaked with the protection of the Graves Amendment and dismissed the plaintiff’s claims.
