Monthly Archives: September 2012

Local Baseball League Granted Summary Judgment in Aluminum Bat Case

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In one of the first product liability suits in the country challenging the safety of youth aluminum alloy bats, Wade Clark Mulcahy senior partner Paul Clark and associate Alison Weintraub successfully obtained summary judgment on behalf of the third-party defendant Wayne Police Athletic League in the Superior Court, Passaic County.

Steven Domalewski, age 12, was injured when struck by a batted ball while pitching in a PAL game on June 6, 2006. The line drive struck him and induced a commotio cordis event that sent Domalewski’s heart into ventricular fibrillation. This catastrophic condition is triggered by the confluence of four factors:  (1) a blow delivered at a precise moment in the cardiac cycle; (2) within a tight range of speeds; (3) to the chest wall directly over the silhouette of heart; and (4) by a hard object, in this case, a batted baseball.

The Wayne PAL employees and volunteers came to Domalewski’s aid almost immediately, by both calling 911 and initiating CPR until the trained first responders took over young Steven’s care. Though the Wayne PAL owned an automated external defibrillator (“AED”), it was never used on Domalewski while manual CPR efforts continued on the field by a coach, bystander and first responders. However, the trained  and certified first responders did not use their AED on Domalewski while initially working on him, and he was later cardioverted only after he was placed inside the ambulance that responded to the scene.

Domalewski survived the accident, which was statistically unlikely, but suffered a severe hypoxic ischemic brain injury. As a result, Steven requires 24 hour care and highly specialized medical treatment. His parents commenced suit against Hillerich and Bradsby Co. d/b/a Louisville Slugger (“H&B”) and Little League Inc. (“LLI”), H&B for manufacturing an allegedly defective baseball bat, and LLI for granting H&B the license to stamp the bat “approved for play in Little League” allegedly without performing any safety tests before such approval was granted.  H&B and LLI, in turn, commenced a third party action against the Wayne PAL claiming that it was grossly negligent in failing to use its available AED, failing to have a written safety plan and failing to have proper field dimensions.

After the close of  intensive and lengthy discovery, the Wayne PAL moved for summary judgment based New Jersey’s Charitable Immunity Act. The court granted the Wayne PAL’s motion and held that the organization fulfilled its required duty of care when it summoned emergency help and that, even if true, the failure to have a written safety plan and proper field dimensions did not constitute gross negligence or cause the plaintiff’s accident and injuries as a matter of law.

After the Wayne PAL’s dismissal, the plaintiff, H&B and LLI reached a settlement for $14,500,000 that made national headlines and was reported, for example, in the New York Times and ESPN. No appeal of the summary judgment decision in favor of the Wayne PAL is anticipated.

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

 

NJ Appellate Court Reverses Summary Judgment Granted Based On Ordinance or Law Policy Exclusion

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In Leda Puhlovsky v. Rutgers Casualty Insurance Company, the Appellate Court overturned a trial court’s Order of summary judgment in favor of the insurer.  The plaintiff owned a four-story commercial building in Paterson.  In March 2008, the adjacent building collapsed and was ultimately demolished. The western brick wall of plaintiff’s building was built into the wood frame of the adjacent building, creating a common wall in between them. After the collapse of the adjacent building, a municipal engineer examined the plaintiff’s building and found it to be unsafe. City officials instructed the plaintiff to either demolish the building or repair it so as to conform to Code.  She opted to demolish the building and afterwards filed a claim with her insurer, Rutgers Casualty, under the policy issued for the commercial property.

An engineer retained by Rutgers examined the building and determined that there had been gradual movement in the building in the past few years due to the earth sinking and settling and that the loss of support from the adjacent building exacerbated the condition.   Plaintiff’s expert also inspected the building and determined that the damage occurred due to the partial collapse of the adjacent building and vibrations from demolition of the adjacent building.  Rutgers eventually denied coverage under the policy’s exclusions for losses occasioned by the enforcement of any ordinance or law, or arising from neglect, faulty construction or earth movement.  The trial court agreed with Rutgers’ position and granted summary judgment its favor.

The Appellate Court reversed and found that the exclusions in the policy did not apply to the specific circumstances of this case. Noting that insurance policy exclusions must be narrowly construed, the court determined that the “ordinance or law exclusion” did not apply to the facts of this case, since the building was not demolished at the direction of the City of Paterson. Rather, the City gave plaintiff the choice either to demolish the structure or immediately correct the hazards and render the building safe. Moreover, the exclusion in the Rutgers policy refers to code enforcement requiring the tearing down of any property, which is not what happened in this case. Further, similar exclusions in other policies have been construed to apply to the increased expenses incurred by an insured in repairing or rebuilding a damaged structure so as to bring it into compliance with a local code or ordinance.

Lastly, the Appellate court held that the motion judge’s reliance on the “earth movement” exclusion was not warranted in the context of a motion for summary judgment. Rather, the question of whether or not the settling, cracking or other disarrangement of plaintiff’s building occurred as a consequence of “earth movement” was a question of fact for a jury.

Thanks to Heather Aquino for her contribution to this post.

http://www.judiciary.state.nj.us/opinions/a5100-10.pdf

Can Tony Parker’s Legal Team Expand New York’s Premises Liability Law?

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The aftermath of the melee between singer Chris Brown and rapper Drake at a posh New York nightclub continues.  Tony Parker, the starting point guard for the San Antonio Spurs, has filed a lawsuit against W.i.P. nightclub claiming $20,000,000 in damages for a corneal laceration he suffered to his left eye after being hit by shards of glass during the fight between Brown’s and Drake’s entourages.

Under New York law, a premises operator has no duty to protect its patrons from unforeseeable and unexpected assaults and no duty to take any protective measures. However, they do have a duty to take reasonable precautions to prevent harm to their patrons and to control third persons if they are “reasonably aware” of the need for such control.  This duty is triggered when the tortfeasor has a history of violent behavior or there was a history of violence between the individuals involved in the occurrence at issue; there was a history of violent or criminal conduct on or around the premises; or there was an escalation of events or a verbal altercation preceding the occurrence.

In his lawsuit, Parker claims that W.i.P. had notice of the “bad blood” between Brown and Drake based on the fact that both had dated singer Rihanna.  Parker thus contends that W.i.P. should never have let them both into the club at the same time with their entourages or should have taken reasonable steps to protect its patrons.  Interestingly, defense counsel for W.i.P. has now filed a motion to dismiss, claiming that Parker’s legal team has failed to allege facts sufficient to state a cause of action.  The motion vehemently opposes the premises liability claim, arguing that it would expand a nightclub’s duty to monitor their celebrity patron’s social relationships and to control their patron’s conduct solely based on media reports of “bad blood” and that to do so would “subject premises operators to the unpredictable and limitless liability so strongly disfavored under New York courts.”

Given the damages being claimed and the high-profile nature of this case, it appears both sides have the resources to engage in a long, drawn out legal battle that may end up expanding, or further defining, New York’s premises liability law.

Thanks to Michael Nunley for his contribution to this post.

https://iapps.courts.state.ny.us/nyscef/DocumentList?docketId=h1j2xatJotIa4W3JeAjn/A==&display=all&courtType=New%20York%20County%20Supreme%20Court

Judicial Shortage Continues.

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We have previously commented on the lack of a sufficient number of judges.  The problem continues as this interesting article from the Atlantic makes clear.  Barring a change in the political winds (which remain unclear in their direction) the problem seems likely to persist.

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

Admissibility of Excited Utterance A Factual Determination Made by the Court.

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Generally the jury decides issues of fact.  However, in Dalli v. McGreen, the court stated that admissibility of an excited utterance is “made in the first instance by the trial court.”  There, the decedent was allegedly injured when he slipped and fell on ice while backing away from defendants’ dog.  Prior to providing any sworn testimony, the decedent died of unrelated causes.  Defendants moved for summary judgment arguing that plaintiff would be unable to establish a case because the only evidence was inadmissible hearsay from plaintiff derived from a telephone call from the decedent (her husband) just after the fall.  In that call, the decedent told plaintiff, “he was trying to make a delivery and he was approached by a dog that he wasn’t sure was friendly or not, he was backing up, misstepped on the ice and fell.”

In its evaluation, the court noted, “An out-of-court statement is properly admissible under the excited utterance exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication.”  The court stated that it was up to the court to determine whether at the time the statement was made, the declarant was under the stress of the excitement.  Among the factors considered was the period of time between the startling event and the out-of-court statement, but there was no definite or fixed period of time within which the declaration must have been made.  Since the decedent called plaintiff immediately after the accident, the court found that the statement was admissible under the excited utterance exception.  That said, even allowing for the admission of the excited utterance, the decedent’s statement that he “misstepped” while backing up did not identify where the accident occurred or the cause, and the decedent’s statement that he was unsure if the dog was friendly or not mitigated against a finding that the dog had vicious propensities.  As such, the court found that even assuming that decedent’s statement was admissible, defendants demonstrated an unrebutted entitlement to judgment as a matter of law dismissing the action, as plaintiff could not establish their liability.

http://www.nycourts.gov/reporter/3dseries/2012/2012_51594.htm

If you have any questions about this post feel free to contact Cheryl at

WCM Secures Favorable Outcome as Result of Chester County, PA Trial

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Philadelphia, PA 

In the case of Modesta Ciarlone, et al. v. 271, L.P. et al., Modesta Ciarlone was heading to the Planet Fitness gym in Malvern, PA when she slipped and fell on black ice.  As a result of her fall, she claimed she underwent three surgeries to her left hip – including a hip replacement.  In her lawsuit, Ciarlone named the property owner, the gym and our client, the snow and ice contractor.  The pre-trial demand on the case was $500,000.

WCM partner Bob Cosgrove and associate Remy Cahn tried the case before the Honorable William Mahon, Pennsylvania Court of Common Pleas, Chester County. After a four day trial and just before the jury got the case, the case settled for $250,000 or half of the plaintiff’s pre-trial bottom line demand.

Plaintiff’s Comparative Negligence Does Not Trigger an Employer’s Contractual Indemnification Obligation (NY)

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 In a bid to trigger an employer’s contractual indemnity provision, some defendants are arguing that the plaintiff’s comparative negligence constitutes the employer’s negligence. While creative, this argument, as discussed by the Second Department in Arrendal v. Trizechahan, is flawed and does not comport with the intent of indemnity provisions.

 In Arrendal, the plaintiff, a Daisy Subway employee, was injured while placing garbage into a trash compactor. He commenced suit against Trizechahan, the owner of the building, who in turn filed a third party claim against Subway Real Estate Group for contractual indemnification. Subway Real Estate Group then sued Daisy Subway, the plaintiff’s employer.

 The indemnity provision in the lease provided that Subway Real Estate Group would indemnify Trizechahn from losses caused by an agent or licensee of Subway Real Estate, which plaintiff was. It also provided that Subway Real Estate would indemnify Trizechahn from losses caused by employees of Daisy Subway, which plaintiff was.

 Trizechahn argued that plaintiff’s comparative negligence constituted negligence and, thus, triggered Subway’s indemnity obligations. The Supreme Court bought this argument, but the Second Department did not. It held that the term “negligence,” as employed by the lease does not encompass the comparative negligence of the injured plaintiff. Rather, the indemnification provision would only be triggered in the event of a finding of negligence by the indemnitor’s agent or employee for a tort committed against the plaintiff.

 Thanks to Gabriel Darwick for his contribution.

 For more information, contact Denise Fontana Ricci at .

 

Mystery eye poker … pencil toting toddler? (NY)

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How much evidence is enough to prove that a day care center was negligent when there is an allegation that one toddler injured another? The Second Department addressed this recently in a case of a mystery injury.

In Ivan v. Lolita Child Day Care, the day care provider admitted that a fellow toddler poked the infant-plaintiff in the eye while at day care. However, doctors found that the infant-plaintiff’s cornea had actually been scratched by a pencil. The lower court granted the day care’s summary judgment motion, finding that there was no proof that the infant was poked in the eye by a pencil while at day care.

The Second Department reversed the lower court’s decision, finding that a plaintiff is not required to exclude possible cause. A plaintiff need only offer evidence from which proximate cause may be inferred. In the instant matter, the day care admitted that the plaintiff sustained an eye injury while in its care and further admitted that no one at the day care witnessed the eye-poking incident. Accordingly, the Appellate Division found issues of fact as to whether the infant-plaintiff’s injury was proximately caused by the day care’s inadequate supervision.

Thanks to Georgia Stagias for this contribution.

For more information, please contact Denise Fontana Ricci at .

 

No Duty to Defend or Indemnify Additional Insured for its Own Negligence (NJ)

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Where language in an insurance endorsement agreed to cover the additional insured for bodily injury “caused, in whole or in part, by [the named insured’s] acts or omissions or the acts or omissions of those actions on [the named insured’s] behalf,” the New Jersey Appellate Division declined to extend coverage for the additional insured’s own negligence.

The concise decision in Smith v. Toys “R” Us – Delaware, Inc. gave no credence to Toys “R” Us’ claim that its agreement with a temporary employment agency entitled it to defense and indemnification for an injury to a temporary employee. The injured worker sued Toys “R” Us after he fell about fifteen feet to a concrete floor from a mezzanine level while working in a warehouse. He alleged that the there were no guardrails or safety precautions in the area where he fell.

Toys “R” Us brought a third-party action against the temporary agency as well as its insurer. Both were granted summary judgment inasmuch as the contract did not explicitly and unequivocally require indemnification for Toys “R” Us’ own negligence. The trial court had found “substantial” evidence to support a finding that Toys “R” Us was responsible for the safety of its equipment and machinery.

In affirming summary judgment for the temporary agency and its insurer, the Court summarily dismissed arguments that the additional insured endorsement offered coverage under the facts presented.

For more information, contact Denise Fontana Ricci at

 

Is a Facebook “Friend” Request Ethically Dishonest?

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Social media may offer a treasure trove of information in personal injury litigation and its lure can be strong. However, there may be a wicked hook to contend with if an attorney goes fishing too far.

 A plaintiff’s attorney has filed an ethics complaint against two defense lawyers after damaging information was discovered on his client’s Facebook page. The trouble for the defense team began when the plaintiff upgraded his privacy settings on Facebook. A paralegal at the defense firm “friended” the plaintiff to obtain photos and a video of him wrestling. After settling the case, the plaintiff’s attorney cried foul claiming that the paralegal’s friend request was tantamount to improper contact with his client in violation of ethical rules.

 The ethical charges include failing to properly supervise a nonlawyer assistant, dishonesty and violations of ethics rules, and conduct prejudicial to the administration of justice. There will be a hearing this fall that should give some guidance on the issues raised. While New Jersey has not weighed in on the issue yet, other jurisdictions have found it to be unethical to “friend” someone under false pretenses and without proper disclosure.

 For more information, contact Denise Ricci at .