Monthly Archives: May 2012

Heir Files US Suit Against the Czech Republic to Recover Nazi Art

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Michal Klepetar is the grand nephew of Richard Popper, a Jewish art collector who had a number of significant paintings seized by the Nazis.  Many of the works — valued at over $50 million — are currently hanging in the Prague National Gallery, and it does not appear that Popper’s ownership of the works are being questioned.  But Czech restitution law only allows direct relatives, such as wives and children, to claim such stolen art, and his pleadings to government officials and politicians have fallen on deaf ears.

As such, Klepetar is now trying his luck with the US courts, which in some cases have allowed Nazi art suits to proceed against foreign governments.  Also of note is the fact that he is being represented by Edward Fagan, who has purchased an interest in the art works at issue and created an organization called Victims of Holocaust Art Theft for the specific purposes of the lawsuit.

Fagan is well known for obtaining a billion dollar settlement from Swiss banks for withholding accounts that belonged to Jewish families that perished under the Nazis. Fagan later was accused of neglect, fraud, misappropriation and other ethics charges and apparently has been disbarred by New Jersey and New York.

For more information, please write to Mike Bono at

 

NJ Supreme Court Takes a Mulligan in Defamation Ruling

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On May 16, 2012, the New Jersey Supreme Court issued an order in W.J.A. v. D.A. holding that presumed damages play a role in defamation cases even in private plaintiff cases where there are no matters of public concern.  But after they realized they goofed based on a statute that provided otherwise, they reversed course a few days later.

In the underlying defamation case, D.A. claimed that his uncle W.J.A. sexually molested him and created a website discussing the abuse. W.J.A. sued for defamation.  The superior court granted summary judgment for D.A. It found that since the postings on the website were more akin to libel (written defamation), W.J.A. had to prove actual injury to his reputation, which he had failed to do.

The appellate court reversed and held that a nominal damages award may be made in a defamation case to a plaintiff who has not proven actual harm to his reputation, meaning that a plaintiff may be awarded minimal damages by a jury without any proof of monetary harm. These damages, not based on any monetary loss, are known as presumed damages. They serve as a means to vindicate the plaintiff’s character through a jury verdict establishing that the defamatory statement is false. Furthermore, the Court stated that presumed damages were sufficient to be used as a foundation for punitive damages in a defamation case.

Initially, the Supreme Court issued an order, agreeing with the holding in respect of presumed damages.  However on May 21, only five days later, the Court issued a corrected opinion revising its earlier rule. Apparently the lawyers representing two amici curiae — the New Jersey Press Association and the American Civil Liberties Union — sent a letter to the court immediately after the May 16 opinion was issued advising the court that its decision was in direct violation of the New Jersey Punitive Damages Act, N.J.S.A. 2A: 15-5.13(c). In fact the statute says specifically that an award of nominal damages cannot support an award of punitive damages. Thus in New Jersey, even in cases where a plaintiff may pursue a defamation claim with only nominal damages, he may not request punitive damages unless he can demonstrate actual compensable harm to his reputation.

The revised opinion was issued without comment, and mirrors the original save for the fact that the Court removed three sentences from its original opinion, all relating to punitive damages standard, and all in violation of the Punitive Damages Act.

Thanks to Remy Cahn for her contribution to this post.

Sender of Text Message to Driver Not Liable for Accident (NJ)

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Everyone knows that sending or reading a text message while you drive can cause an accident.  But recently, New Jersey plaintiffs tried to extend liability to a party that sent a text message to a driver involved in an accident in Kubert v. Best.

On Sept. 21, 2009, Kyle Best, age 19, lost control of his pick-up truck, crossed the yellow line and struck David and Linda Kubert on their motorcycle.  Both of the plaintiffs lost a leg due to injuries sustained in the accident.

The Kuberts claimed that because Best was answering a text when he lost control, Shannon Colonna, who sent the text, was “electronically present” and also at fault. They also alleged that Colonna knew or should have known that Best was driving when she sent the text.  They premised their legal theory on civil aiding and abetting and forseeability and proximate cause.

Evidence developed during discovery showed that the defendants exchanged 62 texts that day, and three messages within about eight minutes prior to the accident, including one text within a minute of Best calling 911 to report the accident.

Defendant Colonna argued against imposing liability, as texters have no control over when, where or how recipients will read and respond to their messages.  In an oral opinion from the bench, Morris County Superior Court Judge David Rand agreed, and granted summary judgment dismissing civil aiding-and-abetting claims against Colonna, finding she had no duty of care under the facts of the case.

If you would like further information about this case, please write to

 

“Any” Means “Any,” even in New Jersey

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The “employee exclusion” of the CGL policy has been upheld by courts throughout the country, and the trend continued in New Jersey in the recent case of Gabriele v. Lyndhurst Residential Community, L.L.C.

There, a construction management company hired a subcontractor to install a sprinkler system in a new construction project.  The foreman of the subcontractor was killed when he was struck by a pallet that fell from the sixth floor of the building project.  The construction management company filed a third party suit against the subcontractor’s insurance company, seeking a declaration that the insurer was required to defend and indemnify the management company as an additional insured under the policy.

The insurer argued that two exclusions in its policy applied to this accident: exclusions of claims 1) for personal injuries to “an employee of any insured”; and 2) for any liability for personal injuries that do not arise solely out of the named insured’s work.  The trial court decided, on cross-motions for summary judgment, that neither of the exclusions applied, and thus that the insurer was required to provide the coverage sought.

On review, the Appellate Division reversed the trial court’s declaratory judgment, citing the first exclusion as the basis for its decision.  The court held that an endorsement to the policy clearly stated that the coverage did not apply to personal injury to an employee of any insured arising out of or in course of, or as a consequence of, employment by any insured.  Furthermore, the language in the endorsement clearly superseded the original policy language that merely excluded from coverage those claims for personal injury made by “an employee of the insured,” because the endorsement itself stated that it changed the policy.

Thanks to Christina Emerson for her contribution to this post.

If you would like further information, please write to .

Sidewalk Liability for Snow and Ice Continues to Evolve in NJ.

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In the case of Gray v. Caldwell Wood Products, et al., New Jersey’s Appellate Division was faced with the question of whether a commercial owner of a vacant property has an obligation to remove snow and ice from the sidewalk.  The trial court, relying on precedent, had ruled in the negative and dismissed the claim.  The Appellate Division has now reinstated the claims.  In reaching its decision, the Court focused on the fact that the property was not vacant land (with nothing on it), but rather a commercial property that simply lacked tenants (because it was for sale) when the accident occurred.  Based on this fact, the Court was blunt – the property “had the capacity to generate income and, had, in fact, generated income in the recent past”.  Thus, the Court reasoned it was proper to make the lot’s owners responsible for sidewalk accidents.  In other words, if you make, can make, or have made money from your land in the past, you are responsible for the sidewalk.  Harsh words for commercial property owners in New Jersey.

For more information about this post, please contact Bob Cosgrove at .

Beware the Insufficiently Detailed Expert Affidavit in NY.

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In Wing Wong Realty Corp. v. Flintlock Constr. Servs., LLC, the plaintiff alleged damages to its building as the result of excavation work at an adjacent construction site.  In support of its motion for summary judgment, one of the defendants (the project’s engineering consulting firm) submitted an affidavit from an expert asserting that the engineering firm had acted in accordance with good and accepted engineering practice.  The affidavit failed to indicate whether the expert had done such things as examined the excavation site, reviewed the drawings of the shoring and underpinning that were alleged to be faulty, or reviewed the designs that engineering firm had proposed changing (to prevent an incident).  In affirming the denial of the motion for summary judgment, the First Department noted that the expert affidavit (which was the basis for the motion) was not good enough to support the award of summary judgment. This decision warns parties —  do your homework and actually draft a good and detailed affidavit, or don’t bother drafting one at all.

Special thanks to Lora Gleicher for her contributions to this post.

For more information about this post, please contact Bob Cosgrove at .

 

 

Notice Is The Key In NJ Case Involving Black Ice

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Krupka v. Cherry Hill Towers LLC, is a presmise liability action involving black ice.  Krupka brought suit against her apartment complex for injuries sustained when she slipped and fell on the adjacent sidewalk.  Before leaving for work that morning, Krupka had observed from her apartment window a slight accumulation of snow on the grass and parked cars.  However, the sidewalks appeared clear.  Krupka testified that, while walking to her car, she did not see any ice on the sidewalk despite looking “very clearly – very carefully”.  After walking approximately 15-20 feet down the sidewalk, she slipped and fell on black ice.  There was no evidence of any prior complaints or injuries due to ice on the defendant’s property.

The jury returned a verdict in Krupka’s favor following which the defendant moved to set aside that verdict.  The court granted the defendant’s motion after determining that there was no testimony whatsoever touching on the defendant’s notice of the alleged icy condition.  The appellate court upheld the trial court’s decision, noting that there was insufficient evidence that the defendant had actual or constructive notice of the alleged defective condition.

Thanks to Heather Aquino for her contribution to this post.

http://www.judiciary.state.nj.us/opinions/a4570-10.pdf

 

When Are Individual Board Members Liable for the Coop’s Misdeeds in New York?

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In the case of Weinreb v. 37 Apartments Corp., New York’s First Department was faced with the question of under what circumstances a coop’s board members can be personally named as defendants in a lawsuit.  The central facts of the lawsuit are as follows:  Weinreb bought a penthouse apartment (overlooking the Hudson River) on the Upper West Side that needed repairs.  Weinreb submitted the repair/renovation plans to the Board, but the Board refused to ratify them.  Weinreb claimed that the Board’s refusal was improper and otherwise unlawful while the Board claimed it had sound reasons for slowing down the repair plans.  Weinreb filed a lawsuit (against both the Cooperative and the individual board members) seeking to compel the Board to ratify the plans.  The Appellate Division was asked to decide whether the individual board members were proper parties to the suit.  The answer was no.  The court reasoned that: “individual board members [cannot be named] as defendants, where they are not accused of [independent] tortious conduct.”  Good news for cooperative insurers who are often faced with the question of just who they have to defend in a disgruntled owner lawsuit.

For more information about this post, please contact Bob Cosgrove at .

PA Court Finds Fall on Ice While Clearing Windshield Covered by Insurance Policy

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In Reich v. Progressive Specialty Ins. Co., the plaintiff, while clearing the snow off the windshield of his vehicle, slipped on a patch of ice and injured his knee.  At the time of the accident, the plaintiff had a policy with Progressive and submitted a claim to recover medical expenses and lost wages connected to the fall.  Progressive denied the claim.  Subsequently, the plaintiff filed an action against Progressive.

In its summary judgment motion, Progressive argued, inter alia, that the plaintiff’s accident did not occur during the “maintenance or use” of his vehicle, thus, there was no coverage.  The court rejected this argument and acknowledged that, although, Pennsylvania courts generally have declined to extend coverage to accidents involving a claimant falling while exiting a vehicle, this case was different.  Here, when the plaintiff exited his vehicle to clear off the windshield, he had already started his car.  Therefore, the court concluded that the plaintiff’s injury was attributable to the common usage of the vehicle and the court denied Progressive’s motion for summary judgment. 

Thanks to Colleen Hayes for her contribution to this post.

http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202555066540&slreturn=1

 

Required or Simply Permitted to Live on Premises? The Distinction May Render the Action Within the Purview of the Workers’ Compensation Law.

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In Kerker v. Maple View Dairy, Inc., the decedent died in a fire while he slept in housing accommodations provided by Maple View.  Maple View hired the decedent pursuant to a written farm work agreement.  The English version of the agreement stated that the decedent was required to sleep on the premises as a condition of employment.  The Spanish version of the agreement, which the decedent purportedly signed, contemplated sleeping arrangements, but did not state that it was a requirement of the job.  The court stated, “if the employee is required to live on the premises either by virtue of the contract of employment or by reason of the nature of the employment, any injury resulting from normal activities on the premises is compensable under the Workers’ Compensation Law .”  “On the other hand, if the employee is on the premises solely out of the kindness of the employer, injuries are not compensable” under the workers’ compensation law, and thus not barred by Workers’ Compensation Law §11.  Here, the court could not determine as a matter of law that the decedent was required to sleep on the premises as part of his job, thus it was not clear that he was injured during the course of his employment.  Accordingly, the court denied Maple View’s motion to dismiss the complaint on the basis of the Workers’ Compensation Bar.

http://scholar.google.com/scholar_case?case=2878444439533808348&hl=en&as_sdt=2&as_vis=1&oi=scholarr