Elevator Misleveling Evidence of Negligence

In Gutierrez v. Broad Fin. Ctr., LLC, the First Department revisited the doctrine of res ipsa loquitur. Gutierrez allegedly sustained injuries when she tripped and fell while exiting an elevator that had misleveled three inches below the floor of the building. The building owner was granted summary judgment on the basis that it did not create or have knowledge of the allegedly hazardous condition, but the elevator maintenance repair contractor was not so lucky. In affirming the lower court’s denial of the elevator contractor’s motion for summary judgment, the First Department held that the plaintiff had a viable negligence claim under the doctrine of res ipsa loquitur. That is, the alleged misleveling of the elevator is not an event that ordinarily occurs in the absence of negligence. Since the elevator contractor had exclusive control over the inspection, maintenance and repair of the subject elevator, the plaintiff had a viable cause of action against the contractor.

Thanks to Lora Gleicher for her contribution to this post.


Losers Pay in Texas?

It appears that there is a fighting chance that Texas will pass losers pay legislation. If passed, the bill would be the first of its kind in the country and would award costs and fees to a prevailing party in a meritless suit. We shall see if the bill passes and if it signals a new wave of tort reform.

No Duty to Mind Your Beeswax!

In Tsakiris v. Gabriel First Corp., the plaintiff was injured by a drum of floor wax. American Wax had hired Alvaro Amato as an independent trucker to deliver the wax to a high school where the plaintiff worked. Amato picked up four wax drums from American Wax, loaded them onto his truck and drove them to the high school. While unloading, one of the drums rolled off the truck and pinned the plaintiff to a nearby dumpster. The plaintiffs’ complaint against American Wax was predicated upon its alleged negligence in arranging and securing the load that was delivered to the school. The court, however, found that American Wax owed no duty to the plaintiff, and was not liable for the independent trucker’s negligence over whom American Wax had no control. Accordingly, the case against American Wax was dismissed.

Thanks to Cheryl Fuchs for her contribution to this post.


First Department Finds Nine-Year-Old Cannot Assume Risk

In Smith v. City of New York, the First Department reversed the trial
court’s granting of summary judgment in the case of a nine-year old boy whom
broke his arm after falling from monkey bars during a City-run summer

Depositions revealed that campers were not allowed on the monkey
bars, but the boy told his counselor, who was supervising a nearby basketball
game, that he was going to play on the monkey bars. At his deposition, the boy
gave contradicting testimony regarding his awareness of the dangers of playing
on monkey bars, stating at one point that he knew of the dangers due to a
previous monkey bar accident, and stating at another point that he did not think
he could get hurt.

Because of the contradictory testimony, the Appellate
Division, First Department found that the boy did not fully appreciate the risks
of his activity, and as such, could not have assumed the risk that his counselor
would not supervise him.

Thanks to Alex Niederman for his contribution to
this post.


Replacing A Neighbor’s Sidewalk Flag Does Not Create A Duty to Maintain the Sidewalk

In Montalbano v 136 W. 80 St., the plaintiff fell on a raised sidewalk
flag and sued the owners of the two adjacent properties because it was unclear
who was responsible for that area of the sidewalk where he fell. Initially,
Callanan thought he owned that area of the sidewalk because on two prior
occasions he had replaced the sidewalk in front of his property, including the
elevated flag that caused the plaintiff to fall. Also, Consolidated Edison had
installed a gas line for Callanan’s building and left an oil cap in the flag.
However, a survey revealed that the sidewalk flag actually abutted Owners
Corp.’s property. As such, the Appellate Division found that Callanan was
entitled to summary judgment. The Appellate Division rejected Owners Corp.’s
argument that Callanan’s actions in making prior repairs constituted a special
use of the sidewalk because there was no evidence suggesting that any such
special use caused the claimed defect.

Thanks to Bill Kirrane for his
contribution to this post.


A CMS Donnybrook in Philadelphia?

I was in the Philadelphia Court of Common Pleas earlier today on a trial calendar
call. For better or worse, I walked into a donnybrook of a CMS argument before
Judge Moss, involving amicus insurers from all over the country and the majority
of the Philadelphia asbestos bar. The issues before Judge Moss were, among
others, whether: (a) an insurer can refuse to allow plaintiff to hold set aside
CMS funds (pending a CMS determination) because, in effect, the
defendants/insurers don’t trust plaintiff’s counsel and would therefore prefer
to hold the money in their own escrow; (b) in asbestos cases with a pre-1980
exposure whether CMS has rights to the funds; and (c) whether the CMS guidelines
contain inherently contradictory rules and regulations, which thereby render
them ineffective if a defendant insurer attempts to rely upon them in stating
why it can’t release funds in a particular case?

The orders have yet to
be issues and will no doubt be the subject of an appeal, but underscoring all of
the arguments was a common problem — a failure to communicate. Too often the
claims examiner/defense attorney fail to make clear to plaintiff’s counsel (in
writing so that a paper trail exists) that payment of the settlement is
conditioned upon: (a) a finding by CMS that plaintiff is not eligible; or (b) if
there is a finding of eligibility by CMS then either (i) plaintiff agrees that
the settlement proceeds are not payable until after CMS announces/renounces its
recovery rights, or (ii) CMS’s name goes on the check. Based upon today’s
arguments, it appears that Philadelphia’s judiciary would find this good
evidence of defendant/insurer intentions if a plaintiff filed a motion to force
payment with costs and interests. Carriers and their attorneys might want to
modify their best practices accordingly. After all, an ounce of prevention is
worth two of cure.

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

Who Is Responsible For Con Edison Transformer Vaults?

In Egan v. Consolidated Edison and New York Yankee Partnership, the
plaintiff sustained personal injuries when she slipped and fell on snow and ice
that was on the edge of a transformer vault where Con Edison was working. In New
York, it is well established that snow and ice removal is the responsibility of
the abutting landowner. As such, the Supreme Court, Bronx County denied the
Yankees’ motion for summary judgment, holding that there was a question of fact
as to whether the Yankees’ snow removal efforts created the condition or
exacerbated it. On Appeal the Appellate Division, First Department reversed the
lower court’s decision and held that because Con Edison owned the vault, Con
Edison and not the Yankees was responsible for maintaining it.

Thanks to
Ed Lomena for his contribution to this post.


Product Recalls on the Rise?

We have spilled much ink over the past six months commenting on the potential
implications of the FSMA. However, it appears that not only food recalls are on
the rise. According to recent reports,
new regulations (like the FSMA) and ease of access to product complaints,
are driving the increase. Brand protection recalls are also trending upwards.
Food for thought for Underwriters when assessing their appetite for risk in
product recall coverage.

For more information about this post, or WCM’s
product recall practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.

Assumption of Risk Defense Not Bar to Horseback Riding Suit

In Corcia v. Rocking Horse Ranch, the plaintiff commenced a negligence action
against defendant’s horseback riding ranch after she allegedly fell off a horse.
Plaintiff claimed that defendants failed to properly instruct plaintiff on how
to control a horse, that defendant’s trail guides were not sufficiently trained,
that they failed to respond when the horse started bucking. Specifically,
plaintiff asserted that the horse bucked a few times over several minutes, but
the guide did nothing. She also alleged that she was not given any instructions
on how to control the horse.

Defendants moved for summary judgment based
on the doctrine of assumption of risk. The Supreme Court partially denied the
motion and the defendants appealed. The Third Department affirmed. It held that
there were issues of fact as to whether the defendants enhanced the risk of
plaintiff falling by (1) failing to respond when the horse bucked, and (2)
failing to instruct plaintiff on how to control a horse.

Thanks to
Gabriel Darwick for his contribution to this post.


Optically Challenged Plaintiff Prevails in NY

New York continues to refine its rules relating to an “open and obvious”
condition. Some courts have held that such a condition can negate the
defendant’s duty of care. Others have ruled that the visibility of a hazardous
condition was only relevant on the issue of the plaintiff’s comparative

In Saretsky, the plaintiff apparently fell when she
failed to notice a transition step in a public sidewalk designed to accommodate
a difference in elevation in the area. The step was a shade similar to the
surrounding sidewalk with some worn red paint on the front edge of the

Plaintiff’s excuse for her fall was simple: she became “optically
confused” because of the allegedly poor design of the step. The trial court
rejected the proffered excuse as nonsense but the Appellate Division demurred,
holding in a bluntly worded opinion that whether a hazard was open and obvious
is only relevant on the issue of comparative negligence.

A colossal
failure of common sense and personal responsibility? New York’s highest court
has yet to decide that issue so stay tuned.

If you have any questions or
comments about this post, please email Paul at pclark@wcmlaw.com.