Monthly Archives: June 2012

Partial Fall Through Floor Establishes Labor Law Section 240 Liability

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In Gabette v. New York University, the plaintiff worked for a HVAC company in a building that was undergoing renovation.  Plaintiff’s company had cut out openings in the floor for HVAC ducts.  The openings were covered with Styrofoam boards.  While walking across the floor, plaintiff stepped onto one of the Styrofoam boards and he started falling through to the floor below.  Plaintiff caught himself at shoulder level, and did not fall completely through.  The court granted plaintiff’s motion for summary judgment on his Labor Law Section 240 cause of action despite the fact that he did not fall completely to the floor below.

http://decisions.courts.state.ny.us/fcas/fcas_docs/2012MAY/3001066952007003SCIV.pdf

If you have any questions about this post, or WCM’s N.Y. Labor Law practice, please contact Cheryl at

PA’s Appellate Division: “Household” Is Ambiguous as a Matter of Insurance Contract Interpretation.

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In the case of Miller, et al. v. Daniel Poole, et al., Pennsylvania’s Superior Court was faced with the question of whether a homeowner’s policy provided coverage to Poole, a young man who accidentally set his grandmother’s house on fire and thereby damaged the neighbor’s (i.e. Miller’s) house.  The homeowner’s carrier argued (and the trial court agreed) that no coverage was owed because Poole did not move into his grandmother’s house until after her death.  Thus the carrier argued that Poole was not a “resident” of the grandmother’s “household” for purposes of coverage.   The Appellate Division has now reversed the trial court.  Relying on case law from other jurisdictions, the Appellate Division held that the phrase “household” was ambiguous as: “It plausibly could mean either that Helen Poole’s relatives qualified as “insureds” (1) if they lived in the same house with her, or (2) if they lived on the premises insured by her under the Wall Rose policy.”  Wall Rose is now required to defend and indemnity Poole.  Who would have thought that the word “household” was ambiguous?

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

NYC Subways and Air Conditioning

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Every New Yorker who uses the subway on a regular basis has had the unpleasant experience of riding a train on hot day with no air conditioning. In Mahautiere v. NYC Transit Authority, a case of first impression in the Supreme Court, Queens County, the plaintiff fainted in a subway cart and fractured her ankle. The plaintiff commenced a lawsuit against the NYC Transit authority, alleging that the Transit Authority was negligent in failing to “provide a reasonably expected level of air conditioning” while the train was stopped between two stations. The Transit Authority moved for summary judgment, arguing that they did not owe the plaintiff a duty to provide air conditioning, yet did so and it was working properly. The court granted the Transit Authority’s motion, holding that even if the agency owed the plaintiff a duty to provide a “reasonably expected level of air conditioning” and breached it, plaintiff did not provide sufficient evidence to support her contention that insufficient air conditioning caused her to fall and fracture her ankle.

This case was an opportunity for the court to address two issues that affect millions of New Yorkers on a daily basis. First, does the Transit Authority have a duty to provide a “reasonably expected level of air conditioning” in the subway? Second, what is a “reasonably expected level of air conditioning?” It will be very interesting to see what the Second Department does when this case comes up on appeal.

Special thanks to Ed Lomena for his contributions to this post.  For more information, please contact Bob Cosgrove at .

 

 

Time to Start Monitoring Your Plaintiff’s Medications: An Accidental Overdose on Pain Medication Following an Accident Can Be Foreseeable.

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In Rice v. West 37th Group, LLC, the decedent, an employee of Five Boro, was injured after falling 15 feet from a ladder. Two years after the accident, the decedent died, and the autopsy ruled the cause of death to be an accident due to intoxication combined with certain drugs. Essentially, the decedent overdosed.

Five Boro, as the decedent’s employer, moved to dismiss the common-law contribution and indemnification claims on the basis that the decedent did not suffer a “grave injury.” In New York, Workers’ Compensation Law § 11 bars claims for common-law contribution and indemnification unless the plaintiff suffered a “grave injury.” Not surprisingly, death is one of the few injuries that qualify as “grave.”

Five Boro argued that the decedent’s death was an extraordinary and unforeseeable occurrence that could not be attributed to the accident. The First Department disagreed, finding that the decedent suffered serious injuries, requiring him to take significant pain-killing drugs, each of which carried its own risks, and that plaintiff showed that the decedent was not abusing his medication. Given that, the Court held that there was an issue of fact as to whether the decedent’s death, caused by an overdose, was a foreseeable result of the accident.

Special thanks to Gabe Darwick for his contributions to this post.  For more information, please contact Bob Cosgrove at .

Can’t Use Facebook To Serve Process

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Last week we posted that NY state courts are permitting discovery of Facebook accounts in certain contexts.  This week, a federal court judge in the Southern District of New York rejected a request to use Facebook as an alternative means of serving process on a hard to find third-party defendant.  In Fortunato v. Chase Bank, Chase wanted to use Facebook to locate and serve the third-party defendant who had a history of providing inaccurate addresses.  Chase argued that this history prevented its investigators from locating the sought after third-party defendant through normal channels.  Although the judge agreed that service by normal means was impractical, he would not allow Chase to use Facebook to locate and serve the third-party defendant stating that Chase had not set forth any facts that would give the court some degree of certainty that the Facebook profile their investigator found was in fact maintained by the third-party defendant.  The court, instead, allowed service by publication in four local newspapers to cover areas where the third-party defendant had listed addresses.

If you have any questions or comments about this post, please email Nicole at .     

Fortunato v. Chase Bank USA

More Baseball Litigation in the News.

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Tis the season and baseball related litigation is in the news (or we’re just baseball happy this week).
In New York, as all sports fans, and many non-sports fans, are now well aware, Johan Santana threw the first no-hitter in Mets history on June 1.  (Ed. Note:  This no-hitter seems largely the result of a questionable foul ball call).
In any event, one particularly excited Mets fan in attendance at the historic no-hitter was Rafael Diaz, whose emotions trumped his better judgment, prompting him to run onto the field after the last out.  Diaz was arrested and detained for 36 hours before his arraignment in Queens Criminal Court.  He now faces prosecution for criminal trespass, and faces up to a year in jail.  (He will most likely not face actual jail time, although he may end up with a criminal record, which can be a lifelong detriment.)
A notable aspect of Diaz’s arrest, as this article points out, is that running onto the field at a sporting event is no longer viewed by sports teams and management as a celebratory event, whereas in years past, running onto the field was practically encouraged.  Both Chris Chambliss’ pennant winning home run for the 1976 Yankees and the Mets division clinching celebration in 1986 resulted in literally thousands of fans storming each field.  Even more recently, nearly every major upset at home in college basketball still results in the a good portion of the student body storming onto the court in celebration.
Diaz’s case is illustrative of the dynamic nature of the landscape in which we all operate.  Trespassing onto a baseball field was once overlooked, but is now prosecuted.  Certain injuries, RSD for example, were hardly appreciated or understood until recently, whereas it is now routinely diagnosed (often correctly, often not) and alleged.  Regarding discovery, authorizations to access facebook and other social media are now a common discovery demand, whereas no such media existed even ten years ago.
Our profession is consistent in that it is always changing, with either new technology, medical advances, or even as to how society views certain actions differently than it did fifteen to twenty years ago.  Too bad no one told Mr. Diaz this in the eighth inning.
In the meantime, in Philadelphia, the Philly Phanatic is in trouble again.  This time he is accused of tossing a woman into a pool while engaging in horseplay.  At least, Mr. Met doesn’t have these problems and we will leave to the side the question of why the current Yankees don’t need a make believe mascot.
Special thanks to Brian Gibbons for his contributions to this post.  For more information about this post, please contact Bob Cosgrove at .

Employee Going To Work In Privately Owned Vehicle May Be Within Scope Of Employment.

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In Laird v. Whager, the New Jersey Appellate Division in applying the “going and coming” rule reversed the trial court’s grant of summary judgment to the employer, Securitas, for a fatal accident caused by its employee, Whager.

Under the doctrine of respondeat superior, an employer may be held liable for the actions of an employee who at the time of the occurence ” was acting within the scope of his or her employment”. Generally , however, respondeat superior does not extend to employee conduct occuring when the employee is traveling to and from work in his or her own vehicle.

Here, the court found that per Securitas instructions,  the Securitas employee arrived at a location in close proximity to the job site at 8 pm where he waited until “dusk” before proceeding to the job site and beginning his security work, the employee’s services were billed starting at 8 pm , and the employee was required to bring a vehicle to the job site for shelter in the event of bad weather.

The Appellate Division noted that New Jersey recognizes 3 ” dual purpose ” exceptions to the going and coming rule, including where the employer requires the employee to drive his or her personal vehicle to work to be used for work related tasks. The court found genuine issues of fact, reversed summary judgment to the employer and remanded the case for trial.

Please contact Robert Ball at with any questions regarding this post.

PA Public Policy Not Enough to Allow Insurer to Win Out-of-the-Box Judgment against Sandusky.

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Opening statements began yesterday in the Jerry Sandusky criminal trial — a case with a truly horrific (alleged) fact pattern (and that’s probably an understatement).  But, as you would expect, more than the criminal trial is afoot and, in fact, parallel civil cases are proceeding.  Many of those civil cases have been filed against The Second Mile, Jerry Sandusky’s former charitable organization and Jerry Sandusky himself.  And, of course, at the time of many of the alleged incidents, The Second Mile had insurance – with Federal Insurance Company (“Federal”).

When confronted with the claims, Federal filed a declaratory judgment lawsuit in federal court (i.e. the Middle District of Pennsylvania).  After issue was joined, but before any discovery had occurred, Federal moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c).  Federal argued that, in light of the allegations against Sandusky and purely as a matter of public policy, the court should rule that Sandusky was not entitled to either defense or indemnity.  After hearing arguments and reading the papers, the Court denied the motion.  The Court noted that while Pennsylvania law “prohibits the reimbursement of Sandusky for any damage award that he may ultimately be found to owe arising from the allegations that he molested and sexually abused children”, in the absence of any discovery (and notwithstanding the well publicized allegations), a 12(c) judgment for Federal would be premature.  It just goes to show that the duty to defend is generously interpreted, indeed.

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

Baseball Can Be Dangerous in NY.

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We previously reported on a case involving a college pitcher who was struck in the face by a line drive.  In Bukowski v. Clarkson, the plaintiff sued his college, alleging that the college was negligent in failing to provide an “L” shaped screen for his protection during batting practice.  The Appellate Division reversed the lower court’s decision and awarded the defendants summary judgment.

The Court of Appeals recently reviewed and upheld the Appellate Division’s decision, finding that consenting participants in sports assume dangerous risks when the risk at issue (that caused the injury) is a known one.  In Bukowski, the Court further found that the plaintiff was aware of the risks associated with pitching even though he had never pitched indoors because he had watched other pitchers and the danger was obvious.  One wonders how the “assumption of risk” argument will play in regards to the football lawsuits now being filed.

Special thanks to Georgia Stagias for her contributions to this post.  For more information, please contact Bob Cosgrove at .

 

N.J. Business Owners May Have Duty to Inspect Off-Site Parking Lots Regardless of Ownership

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A recent N.J. Appellate Division case analyzed whether business owners have a duty to provide patrons with a safe pathway to an offsite parking lot owned by others.

In Ciarrocca v. Ferrugia Associates, et. al., defendant (funeral home) had an agreement with two adjacent businesses to use their parking lots when their lots became full. Defendant also hired an off-duty police officer to manage traffic. The officer testified that he was instructed by the defendant to direct patrons to other off-site parking lots onShawnee Drive for which defendant did not have permission to use. Plaintiff was directed to park at one of theShawnee Drive lots and used a sidewalk to get to defendant’s premises. When returning to her car via the same route, she slipped on black ice, fell and seriously injured her leg. Defendant later moved for summary judgment and the Trial Court ruled in their favor and again on reconsideration.

The Appellate Division noted generally that landowners have a duty to prevent injury to visitors from dangerous conditions and to warn of hazards. Business-owners in particular have a duty to remove hazards such as snow and ice from ways of access to their establishment. Case law also instructs that business owners have no duty in areas where they lack both ownership and control. While agreeing with the “ownership and control” analysis utilized by the lower Court, the Appellate Division reversed the trial court’s decision finding a limited duty only if the plaintiff herself had chosen where she parked. Although the defendant could not remedy the condition near the Shawnee Lot, it had a duty to perform a reasonable inspection and warn guests of hazardous conditions or to avoid the site if they directed patrons to park onShawnee Drive. The matter was remanded to the trial court to determine whether defendant in fact instructed the officer to direct traffic to theShawnee Drive lot and whether the black ice could have been discovered by a reasonable inspection.

Thanks to Andrew Marra for this post.  If you have any questions or comments, please contact Paul at