Real Estate Agent a “Volunteer” and Thus Not Covered By New York’s Labor Law

In Lipsker v. 650 Crown Equities, the plaintiff, a real estate agent for defendant Skyline, was injured when he fell from a ladder while putting up a sign at Skyline’s office. The plaintiff commenced suit against the owner and manager of the building alleging violations of the Labor Law and common-law negligence.

The lower court dismissed the plaintiff’s Labor Law claims, finding that plaintiff was a volunteer and thereby not entitled to the protections of the Labor Law. The First Department affirmed. In doing so, the court focused on the fact that plaintiff was acting as a volunteer when he helped his boss put up the sign and that he was paid on commission.

Thanks to Gabriel Darwick for his contribution to this post.

http://www.nycourts.gov/reporter/3dseries/2011/2011_01246.htm

Attorney Client Privilege Under Siege in PA?

The attorney-client privilege is used to protect communications between clients and their attorneys, but a Philadelphia judge has recently ruled that it is not nearly as broad as some might think. In Kolar v. Preferred Unlimited Inc., Judge Mark Bernstein ruled that under Pennsylvania law the attorney-client privilege protects only a client’s communications to the attorney, not communications from the attorney to the client (unless they reveal the client’s communications). Although some attorney communications may be protected as attorney work-product, they are not protected as communications per se.

Despite this ruling, this does not appear to be the last word on this subject in Pennsylvania and we will keep you posted of further developments in this area.

Special thanks to Mendel Simon for his contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.

http://pdf.wcmlaw.com/pdf/PA Priv.pdf

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UPDATE: 2/23/11

Pennsylvania’s highest court has just issued a ruling http://www.pacourts.us/OpPosting/Supreme/out/J-58-2010mo.pdf that, in Pennsylvania, “the attorney-client privilege operates in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice.” This is a big development — especially in the coverage context.

“Trivial” Defect in Sidewalk Does Not Constitute a Dangerous Condition

In Vasquez v. JRG Realty Corp. et al., the First Department examined a personal injury case in which a plaintiff alleged that she tripped and fell in front of defendants’ property and suffered personal injuries. The defendants argued that the supposed defect on which plantiff tripped was a trivial one, in that based upon their measurements, the “defect” was approximately the height of a nickel.

In opposition, although plaintiff failed to submit any expert testimony, she testified at her deposition that the defect was approximately three quarters of an inch to one inch. The Court granted defendants’ motion for summary jusgment after finding that plaintiff’s testimony was speculative (not to mention that plaintiff’s account seems to corrorborate the measurements of the defendant’s expert). Moreover, the Court found that plaintiff failed to rebut defendants’ argument that the defect was trivial.

Not surprisingly, the Court does not specficically define what does or does not constitute a trivial defect. As such a determination must be made on a case by case basis based upon the facts. Nevertheless, the Court sets a precedent here in that a defect the size of a nickel or smaller (i.e., a dime or a penny?) may be regarded as a trivial one under similar facts to this case.

Thanks to Brian Gibbons for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01349.htm

Lack of Notice Supports Grant of Summary Judgment

In Ameneiros v. Seaside Company, LLC, the Second Department found that defendant had established its prima facie entitlement to summary judgment and that plaintiff failed to raise any triable issues of fact, including that the dangerous condition was recurring and ongoing and that the defendant had actual knowledge of the condition. Plaintiff was injured after she slipped on a puddle of water in an elevator of an apartment building owned by defendants.

The Second Department, affirming the trial court’s ruling, held that defendant had succcessfully proved that the puddle was created by a codefendant, that it did not have actual notice of the puddle, and that the puddle did not exist for a sufficient length of time for defendant to have constructive notice of the puddle. Thus defendant was entitled to summary judgment.

Thanks to Alison Weintraub for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01226.htm

The Boy Who Cried Wolf?

We’re all familiar with the story of the boy who cried wolf. It sometimes seems that talking about mold, the “next” asbestos, in the context of New York is like crying wolf. But, if recent news articles are to be believed, mold may really be about to be a problem in NY — http://nyti.ms/ePGzbl. Maybe this time, there really is a wolf.

For more information, about this post please contact Bob Cosgrove at rcosgrove@wcmlaw.com

PA Supreme Court: Operational Control Over Contractor Work Is Needed for Property Owner Liability

In the case of Beil v. Telesis Construction Inc., et al., Pennsylvania’s Supreme Court has just issued a significant decision clarifying a property owner’s responsibility for personal injury actions arising out of the work of its contractors. In Beil, Lafayette College hired Telesis, a construction company, to work on one of its campus engineering buildings. In turn Telesis, subcontracted with another company, Kusman, to perform roofing work. Beil, the plaintiff, was a Kusman employee and was injured when he fell from the roof on which Kusman was working. He sued Telesis and Lafayette.

Justice Debra Todd addressed the scope of Lafayette’s exposure — http://www.pacourts.us/OpPosting/Supreme/out/J-89-2009mo.pdf Using the Restatement Second of Torts as a guidepost, Justice Todd’s majority opinion held that a landowner can only be liable for a personal injury action arising out of a subcontractor’s work, if the landowner retained control over that work “such that it renders the contractor not entirely free to do the work in his own way.” Merely maintaining some general responsibility for safety issues does not constitute the requisite degree of control. Rather, to be exposed to liability, the landowner must maintain some operational control over the means and methods of the subcontractor’s work. This is good news for property owners and not such good news for plaintiffs attorneys.

Special thanks to Remy Cahn for her contributions to this post. For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.

Shh! Police Telling A Preacher To Keep It Down Is Not A First Amendment Violation

In Costello v. City of Burlington, the US Court of Appeals for the Second Circuit examined whether a police officer violated a preacher’s First Amendment Rights when the officer told the preacher to lower his voice when preaching on at a pedestrian mall. The Preacher was shouting and yelling, and disrupting other pedestrians. When the preacher refused, the officer issued a written warning for violation of Burlington’s noise control ordinance. According to the officer, the preacher could be heard over 350 away.

The Second Circuit upheld Burlington’s right to limit the preacher’s volume. The Court noted that Costello’s voice dominated the area, and impinged on the use of the neighborhood by others. Significantly, the office did not tell the preacher to stop speaking, but only to lower his voice.

If you have any questions regarding this post, please contact David Tavella at dtavella@wcmlaw.com.

http://pdf.wcmlaw.com/pdf/costello.pdf

Claim Against NJSEA For Escalator Collapse At Giants Stadium Reinstated By NJ App. Div.

In DiBartolomeo v. New Jersey Sports and Exposition Authority ( NJSEA), the Appellate Division reinstated a personal injury suit against the NJSEA for a 2006 escalator collapse at Giants Stadium after a New York Jets football game. Plaintiff claimed that as fans were exiting, the escalator buckled and the treads flattened causing patrons to slide down with bodies piling up at the bottom.
The Appellate Division reversed summary judgment to the NJSEA finding that it was not entitled to immunity under the NJ Tort Claims Act. The court found that the stadium escalators could be found to pose a danger to the general public even when being used in a foreseeable manner. The potential dangerous condition was the NJSEA policy of operating the escalators that were rated for 300 lbs. per step, when it was foreseeable and likely that greater loads would be routinely applied.

Please contact Robert Ball with any questions regarding this post.

http://www.judiciary.state.nj.us/opinions/a2716-09.pdf

Claim Against NJSEA For Escalator Collapse At Giants Stadium Reinstated By NJ App. Div.

In DiBartolomeo v. New Jersey Sports and Exposition Authority ( NJSEA), the Appellate Division reinstated a personal injury suit against the NJSEA for a 2006 escalator collapse at Giants Stadium after a New York Jets football game. Plaintiff claimed that as fans were exiting, the escalator buckled and the treads flattened causing patrons to slide down with bodies piling up at the bottom.
The Appellate Division reversed summary judgment to the NJSEA finding that it was not entitled to immunity under the NJ Tort Claims Act. The court found that the stadium escalators could be found to pose a danger to the general public even when being used in a foreseeable manner. The potential dangerous condition was the NJSEA policy of operating the escalators that were rated for 300 lbs. per step, when it was foreseeable and likely that greater loads would be routinely applied.

Please contact Robert Ball with any questions regarding this post.

http://www.judiciary.state.nj.us/opinions/a2716-09.pdf