Pre-School Admissions Nightmare

Four-year-old Juliet and her friend Jacob were “racing” their bicycles -with training wheels firmly in place – on a Manhattan sidewalk one day last year when Juliet bumped into an 87-year-old woman, knocking her to the ground. The injured woman filed suit againt Juliet, alleging that Juliet was negligent.

Juliet moved to dismiss the case on the ground that, as a four-year-old, she was non sui juris (incapable of negligence). The court denied her motion, ruling that Juliet’s status is a question of fact for the jury. Here then is the Manhattan parent’s nightmare. Is it not enough that Manhattan’s four-year-olds need to pass written entrance exams and sit through rigorous panel interviews just to get into pre-school — http://www.nytimes.com/2010/10/28/nyregion/28private.html?_r=1. Now in a Kafka-esque twist of fate, the only way for Juliet’s parents to defeat this case and have Juliet declared non sui juris, is to present to the court “substantial evidence regarding [Juliet’s] lack of intellegence and maturity.”

http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32892.pdf

NJ Sup Ct Finds Public Entities Attempt To Limit Right To Sue Against Public Policy

In Marcinczyk v. State Of New Jersey Police Training Commission, the Supreme Court considered whether an exculpatory agreement that a police recruit executed as a condition of participating in the Somerset County’s Police Academy program barred his claims for injuries. On August 5, 2010 in Stelluti v. Casapenn Enterprises, the Supreme Court held that a gym patron of a private health club could not sue for injuries sustained on faulty exercise equipment because she had signed a lawsuit waiver as a condition of her membership.

While the Supreme Court enforced the waiver of liability in the private health club setting, it found that a government run institution violated public policy by doing the same thing. The Court found that the agreement signed by Marcinczyk was invalid because it contravened public policy as expressed in the New Jersey Tort Claims Act. The Court found that a public entity cannot condition the provision of a public service on the recipient’s execution of a waiver of liability.

Please contact Robert Ball with any questions regarding either of these opinons.

http://www.judiciary.state.nj.us/opinions/supreme/A-19-09.pdf

School Not Liable For Teacher’s Sexual Assault On Students

In Acosta-Rodriguez v. City of New York, a New York City public school teacher was accused of sexually abusing several students. The students, in turn, filed an action against the Board of Education under the theory of respondeat superior.

The 1st Department granted the Board of Education’s summary judgment motion. Among other things, it found that there was no triable issue of fact as to whether the teacher’s conduct was done for purely personal reasons and not in furtherance of any school business. The Court also held that the Board of Education was not on actual or constructive notice of the employee’s propensity for sexual abuse of minors merely because he bought pizza for students and observed them while they played.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07470.htm

Thanks to Georgia Stagias for her contribution to this post.

Bad Construction or New Damage? — A Question For The Art World.

Interest in post war and contemporary art is beginning to return to pre-Lehman levels — http://www.dailyfinance.com/story/confidence-colors-contemporary-art-market-with-record-prices-se/19476374/ This good development should raise some eyebrows in the art insurance world. Why? Because post war and contemporary art suffers from two problems: (a) it is often created with novel techniques and from composite materials – techniques and materials that can be difficult to replicate; and (b) because of (a), post war and contemporary art often degrades or deteriorates at a much faster rate than the old masters. Restorations are thus becoming more common and necessary than one would expect with pieces of such recent provenance – http://www.nytimes.com/2010/10/26/science/26whitney.html?_r=1&ref=science This fact should be remembered the next time a shipping or other loss comes in. Insurers must ask themselves – is it new damage resulting from an occurrence, or rather simply part of the inherent and rapid degradation process inherent to post war and contemporary art?

If you have any questions about this post or WCM’s fine art practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.

Is Marathon Running Bad For Your Health?

With the New York marathon almost upon us, this is the question that health insurers are asking themselves — http://www.nytimes.com/2010/10/25/sports/25coverage.html?_r=1&ref=sports. While distance runners are typically considered to have healthy and active lifestyles, the reality is that 78% of distance runners will experience injuries to their lower extremities. As a result, distance runners can expect to pay the same in health insurance premiums as individuals who are overweight and otherwise unhealthy. It just goes to prove that my long held distaste for distance running is backed by both economics and medicine!

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

Limitation Period In Fair Pay Act Does Not Cover Failure To Be Promoted

In Noel v. The Boeing Co., the 3rd Circuit was forced to determine how far to stretch the limits of the Fair Pay Act enacted in 2007. The FPA was enacted to remedy pay discrimination between employees of similar stature. The Act states that each time an employee receives a paycheck that is issued as a result of the discrimination, the statutory period restarts, giving employees ample time to file a claim even if they do not learn about the discrimination for a significant period of time.

In Boeing, the plaintiff, Emmanuel Noel, a Haitian, was claiming he was the victim of pay discrimination when his Caucasian co-workers were promoted but he was not. His employer argued that his claim was time-barred, since the promotion decisions were made in 2002 and 2003. The 3rd Circuit was forced to consider whether a failure to be promoted would allow the plaintiff’s claims to be protected under the FPA. The Court determined that it would not. It stated that the FPA enforces equal pay for equal work, but here Noel was comparing his pay to the salary of those who worked in different positions. Thus his case falls outsides the confines of the FPA and he was unable to pursue his claim.

Thanks to Remy Lapidus for her contribution to this post.

http://www.ca3.uscourts.gov/opinarch/083877p.pdf

The Fox Guarding the Hen House?

As we have often reported, food safety in the US is an issue of grave concern. If newspaper accounts are to be believed — http://www.washingtonpost.com/wp-dyn/content/article/2010/10/21/AR2010102106900.html?hpid=topnews, one of the greatest causes of concern should be the US’s voluntary safety/quality control system. Under this system, the “safety” and “quality” of the US system is checked not by an independent agency, but rather by auditors paid by the food companies themselves. The pressure on these auditors to inflate the grades given their clients is obvious and draws eerie parallels to the problems the ratings agencies played in the current financial crisis — http://rru.worldbank.org/documents/CrisisResponse/Note8.pdf The accuracy of the ratings is thus suspect. This only stands to reason since a fox guarding the hen house can never be a good thing. The problem is – in this age of bloated deficits and the call for government cutbacks, is there a better option? A question certain to cause many sleepless nights not only for insurers, but also consumers.

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

Appellate Court holds Suicide Triggers Workers’ Comp. Benefits (NY)

In the Matter of Smith v. Cornell University, the university appealed a decision of the Workers’ Compensation Board which ruled that the suicide of Smith’s husband was causally related to his employment. Mr. Smith was a painter employed by Cornell when he sustained work-related injuries in 2000 and 2001. Smith’s workers’ compensation claims arising out of a 2001 accident were based on a variety of ailments, including consequential depression. In 2007, Mr. Smith committed suicide and his wife filed a claim for workers’ compensation death benefits, which was approved by the Board.

The Third Department upheld the award finding that death benefits may be awarded for a suicide that “resulted from insanity, brain derangement or a pattern of mental deterioration caused by work-related injury.” The Court found that Mr. Smith had previously alleged depression as an ailment resulting from the accident and his treating psychiatrist confirmed that Smith’s disability and accompanying chronic pain led to his eventual suicide. Although Cornell asserted that other factors contributed to Smith’s suicide, a compensable act need only be a contributing cause of a resulting mental injury.

Thanks to Chris O’Leary for his contribution to this post.
If you would like further information about this case, please e-mail mbono@wmclaw.com

http://www.nycourts.gov/reporter/3dseries/2010/2010_07102.htm

Ethics Committee not Amused by Comedian/Judge (NJ)

By day, Judge Vincenzo Sicari presides over a Municipal Court in Hackensack, NJ, but by night he works the comedy circuit as “Vince August.” He sought guidance from the Advisory Committee of Extra Judicial Activities as to whether this practice was acceptable, and the committee recently advised him that he needs to pack in his act if he wants to continue on the Bench. The Judge has now petitioned the Supreme Court of New Jersey to weigh in on the issue.

The panel based its decision, in part, on Canon 2B of the Code of Judicial Ethics which states: “A judge should not allow family, social, political, or other relationships to influence judicial conduct or judgment. A judge should not lend the prestige of office to advance the private interests of others; nor should a judge convey or permit others to convey the impression that they are in a special position of influence.”

The Judge sought a compromise, advising the committee that he would only use a stage name and would decline any request for press interviews. But the committee found that there were earlier articles and stories available on the Internet, including some showing his photograph. Therefore, he could be recognized as a local municipal judge, and some of his material could “suggest bias, predisposition and lack of impartiality, which could negatively impinge on the perceptions of litigants, witnesses and the public at large.”

Although the Judge indicates he may retire from the bench in the coming months, he still intends to pursue his appeal.
We’ll keep you posted.

If you’d like further information, please e-mail mbono@wcmlaw.com.

http://pdfserver.amlaw.com/nj/ACEA-Op12-08.pdf

Who Bears the Risk of Proper Trucking Packing? The 3rd Circuit Weighs In.

In Spence v. ESAB Group, Spence, a trucker, was injured when his tractor trailer overturned after he had picked up a load of cargo that had been packed by ESAB. He commenced a lawsuit against ESAB based upon ESAB’s negligent packing.

On appeal, the Third Circuit was faced with the question of whether Pennsylvania law “imposes upon a shipper a duty of care to safely secure the goods the shipper has loaded in a third-party carrier’s tractor trailer.” ESAB argued that 49 CFR §392.9(a) and 49 CFR 393.100 preempted state law and placed sole and exclusive responsibility for adequately securing a load on the trucker and not the shipper. Spence, in opposition, claimed that the federal statutes/codes were not meant to totally preempt state law and thus Spence could proceed with his negligence claim against ESAB.

The Third Circuit agreed with Spence — http://www.ca3.uscourts.gov/opinarch/094363p.pdf The Third Circuit ruled that “those who undertake the task of loading, securing and hauling cargo on tractor-trailers have a duty to exercise due care to protect property and persons from the risk of harm.”

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