Confusion in Pennsylvania Products Law?

Products liability law in Pennsylvania has become increasingly unpredictable.  In the last three years, the Third Circuit has twice opined that the state Supreme Court is likely to adopt provisions of the Restatement (Third) of Torts, which introduces the concept of negligence into products liability law.  However, the state Supreme Court has not directly addressed this issue, thus, the Restatement (Second) Torts appears to remain controlling for state courts.  Unlike the Third Restatement, the Second Restatement states that a defendant will be liable for any defective product that is unreasonably dangerous to the product’s user, which does not include the concept of negligence.   Therefore, the products liability law parties will be subject to in Pennsylvania depends entirely on whether the federal or state courts have jurisdiction in the matter.  Further, since these laws are in conflict, the rights and responsibilities of each of the parties will differ depending on which forum is selected for the case.  Getting any clarity from the state Supreme Court in the near future appears unlikely.  Therefore, for now, it appears this unpredictable aspect of Pennsylvania law will remain.

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

 

 

Cheerleaders Assume Risk Of Injury

In Kristina D. v. Nesaquake Middle Sch., the Second Department reversed the lower court’s denial of defendants’ motion for summary judgment and dismissed plaintiff’s complaint. In doing so, the Second Department reaffirmed the long standing precedent that one cannot recover for injuries sustained in recreational activities, for those commonly appreciated risks inherent in the participation of the activity.

Plaintiff was an experienced middle school cheerleader, who was allegedly injured during cheerleading practice when she fell during the performance of a “shoulder stand,” a stunt she had performed many times in the past. Plaintiff sued the school district and cheerleading coach, alleging a failure to properly supervise the cheerleaders.

The complaint was ultimately dismissed despite the Second Department’s acknowledgement that even if the risk is assumed, a school must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from “unassumed, concealed, or unreasonably increased risks.” In this instance, it was clear that plaintiff, an experienced cheerleader, assumed the risks involved in cheerleading and the performance of stunts. Moreover, the school made a prima facie showing that the plaintiff was adequately supervised.

Special thanks to Lora Gleicher for her contributions to this post.  For more information, please contact .

 

911 Calls Regarding Roaming Pitbulls Did Not Create “Special Duty” on Part of City.

In Sutton v. City of New York, a 90 year old was mauled to death by two pitbulls that had been roaming the neighborhood for three months.  The plaintiff claimed that repeated calls to the police by the decedent’s neighbors and family regarding the roaming pitbulls put the City on notice of the damager, and created a “special duty” to protect the decedent from attack.  The court found that the plaintiff failed to satisfy the elements of the four part test to establish the “special duty.”  The elements are: (1) assumption by the municipality to act on behalf of the party that was injured; (2) knowledge on the part of the municipality that inaction could result in injury; (3) direct contact between the potential victim and the municipality’s agents, and (4) the party’s reliance on the municipality’s affirmative undertaking.  Since the decedent did not make any calls on his own, and had no direct contact with city, there was no “affirmative duty” to act on his behalf.  Accordingly, the court granted the City’s motion for summary judgment and dismissed the case.

For more information about this post, please contact .

 

NJ Plaintiff Injured During Tour of YMCA Is Barred From Suit

In a recent decision, the Appellate Court upheld summary judgment based upon New Jersey’s Charitable Immunity Act.  In Sapia v. Hunterdon County YMCA, Sapia’s parents, who do not speak English, were interested in obtaining a membership to the local YMCA.  Sapia accompanied her parents to the facility for a tour and acted as a translator on their behalf.  During the tour, Sapia slipped and fell on water near a locker room, injured herself and eventually brought a negligence suit against the YMCA.

The YMCA filed a motion for summary judgment based on New Jersey’s Charitable Immunity Act.  Under the statute, a charitable organization is immune from suit if the plaintiff is a beneficiary of the organization and the organization was engaged in its charitable works at the time when the tortious conduct occurred.  The court granted summary judgment to the YMCA and Sapia filed an appeal.  In her appeal, she argued that she was not a beneficiary of the YMCA since she was not interested in their membership services and that the YMCA was not engaged in the performance of its charitable objectives at the time of her fall.

The Appellate Court upheld the trial court’s decision, finding that Sapia was a beneficiary of the YMCA at the time of her accident.  Under the statute, the term “beneficiary” is to be broadly interpreted.  In aiding her parents during their tour, Sapia was educated regarding the nature of available services offered by and the proposed goals of the YMCA.  Accordingly, she was a beneficiary under the terms of the statue.  Moreover, the court found that the YMCA was advancing its charitable purposes at the time of the accident.  Specifically, Sapia was injured while walking a guided tour of the facility where the YMCA conducts it activities and functions.  The court found that this particular function bore a substantial and direct relationship to the YMCA’s general purpose.

Thanks to Heather Aquino for her contribution to this post.  For more information, please contact .


How Excess is an Excess Insurance Policy?

The Appellate Division, Second Department recently addressed a declaratory judgment action brought by Utica Insurance Company that sought a declaration that Utica’s umbrella policy was excess to GEICO’s umbrella policy and that Utica, therefore, was not required to contribute until the GEICO policy had been fully exhausted.  In upholding the lower court’s decision that granted Utica summary judgment the Appellate Division addressed a specific provision in GEICO’s policy that stated the policy was “excess over any insurance.”  In comparison, Utica’s policy stated that it was “excess over, and shall not contribute with any of the other insurance, whether primary, excess, contingent or on any other basis.”

The court explained that when a policy does not specifically negate contribution with other excess policies, “it must contribute ratably with similar policies, [or be] exhausted before a policy which expressly negates contribution or otherwise manifests that it is intended to be excess over other excess policies.”  Utica’s specificity on how its excess umbrella policy should be treated prevailed over GEICO’s vague language in its excess umbrella policy. Accordingly, insurers should take careful consideration of this language in determining when coverage is triggered on an excess policy.

Thanks to Michael Nunley for his contribution to this post.  For more information, please contact .

 

WCM Wins Jury Trial in Bronx County Civil Court.

New York, NY 

Associate Lora H. Gleicher won a jury trial in a Bronx County Civil Court matter.  In Mena v. 1944 Holding Ltd., et al., plaintiff allegedly tripped and fell as she was descending an interior staircase in a building that the defendant owned and managed. Plaintiff claimed that prior to her fall, she had made numerous complaints to the building superintendent about an allegedly defective stair, but that the superintendent never remedied the problem. At the time of the trial, the superintendent was no longer working for the building and was unable to be located. As such, the defendants were unable to produce a witness at trial.

At trial, plaintiff had difficulty telling the truth, testifying on direct that (1) she told the superintendent about the alleged defect six months prior to her accident; (2) she fell on the second step; (3) she sought medical attention, immediately; and, (4) she did not return to work following the accident. On cross-examination, we attacked plaintiff’s credibility and confronted her with her deposition testimony, wherein she stated: (1) she allegedly told the super about the alleged defect only several weeks before her accident – not six months; (2) she fell on the third step – not the second; (3) she sought medical attention 8 days after her accident; and,(4) she returned to work for approximately 5 days after her accident. Plaintiff’s credibility was further destroyed when she denied ever filing a claim for personal injuries, despite having filed a claim related to 9/11 clean.

Ultimately plaintiff’s credibility was shattered, and despite not having a defense witness, after a mere 25 minutes of deliberations, the jury returned with a defense verdict.

WCM Awarded Summary Judgment in Westchester County Premises Case.

New York, NY

Associate Lora H. Gleicher was awarded summary judgment in a Westchester County, NY premises liability case. In the case of Salvati v. Marriott, the plaintiff allegedly sustained injuries when an umbrella struck her head while dining outdoors at a Marriott located in Arizona. Plaintiff claimed that Marriott negligently permitted an umbrella to be left open during unsafe weather conditions, failed to secure the umbrella to prevent it from becoming hazardous and failed to warn plaintiff about the alleged hazardous condition.

At the close of discovery, we moved for summary judgment based on the fact that Marriott did not create or have notice – constructive or actual – of the allegedly hazardous condition that caused the umbrella to strike plaintiff’s head. Namely, Marriott was not aware of the allegedly hazardous wind condition that caused the subject umbrella to strike plaintiff. The trial court agreed with our analysis and thus dismissed the plaintiff’s complaint, nothing that Marriott was not responsible for the unpredictably of the weather.

WCM Obtains Summary Judgment in Brooklyn Labor Law Case.

New York, NY

Associate Lora H. Gleicher was awarded summary judgment in a Kings County, NY Labor Law case. In the case of Martinez v. Adjmi, the plaintiff allegedly sustained injuries while performing construction work on the first floor of a two-family home that was being demolished. Plaintiff alleged that our client, the owner of the property, was responsible for his injuries.

At the close of discovery, we moved for summary judgment premised on the grounds that: (1) Labor Law §240(1) and §241 (6) exempt from liability owners of one and two family dwellings who contract for, but do not direct or control construction work; and (2) Labor Law §200, exempts owners from liability – so long as they do not direct or control the work. For these reasons, we argued that our client did not owe a duty to the plaintiff and could not be held liable for his injuries. Plaintiff attempted to create a question of fact, by arguing that as our client was a commercial real estate developer, the subject demolition and construction project was likely for commercial purposes. However, the trial court agreed with our position, as all evidence supported the conclusion that the subject property was being demolished and reconstructed for personal residential usage. As such, the plaintiff’s complaint was dismissed.

Stop Sign Means Stop… and Yield (NY)

Most drivers recognize that stopping at a stop sign is not the full extent of a driver’s responsibility.  Before proceeding, a driver must also make sure that it is safe to do so.  However, there are those who don’t understand the concept of yield to right of way.

In Briggs v. Russo, the plaintiff was traveling down a street governed by a stop sign. The defendant was traveling down a street unencumbered by stop signs. The parties collided in the intersection.

The defendant was granted summary judgment on the basis that the plaintiff stopped at the sign but failed to yield the right-of-way to the defendant’s approaching vehicle. The Second Department upheld the decision, finding that the plaintiff’s failure to yield the right-of-way after stopping was a violation of Vehicle and Traffic Law 1142(a) and was negligence as a matter of law.

Further, the appellate court held the plaintiff’s statements that she stopped but did not see any oncoming vehicle did not create an issue of fact. In fact, the court found that a driver is negligent when they fail to see that which, through proper use of senses, should have been seen.

Thank you to Georgia Stagias for her contribution.

For more information, contact Denise Fontana Ricci at

An Unusual and Violent Bus Stop (NY)

Bus riders in New York City are familiar with the usual “jerks and jolts” that occur when riding a bus in heavy City traffic. However, a bus driver that makes an “unusual and violent stop” may be negligent. In Lewis v. Metropolitan Transportation Authority, the plaintiff was injured when a bus on which she was a passenger stopped suddenly, causing her to fall. The Supreme Court, Queens County was faced with the question of whether the bus driver made an “unusual and violent stop”. The bus driver testified that he was in traveling about 15 mph in heavy traffic “at least a car length” behind a passenger car, when the car stopped suddenly in an intersection. The bus driver hit the brakes and stopped the bus from hitting the car.

The MTA moved for summary judgment on the grounds that the stop was not “unusual and violent. Further, the MTA argued that they were entitled to summary judgment under the “emergency doctrine”.

The Supreme Court, Queens County, denied the motion. On appeal, the Appellate Division, Second Department upheld the lower court’s decision, holding that the bus driver’s testimony that he was traveling as fast as 15mph and as little as one car length behind the car before it stopped suddenly demonstrates a question of fact. Further, the court held that the emergency doctrine does not apply because the bus driver was reacting to a common traffic occurrence and not an emergency.

Thank you to Ed Lomena for his contribution.

For more information, contact Denise Ricci at