PA’s Highest Court Allows Reckless Conduct Defense in Products Cases.

In the case of Reott, et al. v. Asia Trend, et al., the plaintiff took a Remington tree stand and utilized a “ladder stick” to climb twenty to twenty-five feet to install the stand in a “suitable” tree.  He placed the stand in the tree and cinched the locking strap around the tree trunk.  Unfortunately, when he attempted to climb down the tree, the locking strap broke and he fell to the ground thereby suffering crushed vertebrae and a fractured wrist.  The installation of the stand in the tree was contrary to all acceptable “tree strand” usage and the defendants pleaded reckless conduct as an affirmative defense.

On appeal Pennsylvania’s Supreme Court was faced with the question of “whether a defendant in a products liability action must plead and prove as an affirmative defense that an injured party’s alleged “highly reckless conduct” was the sole or superseding cause of the plaintiff’s injuries.”  The Court, in a binding and precedential decision, ruled that the answer is “yes.”  The good news in this decision is that it gives defendants in a products case a way, albeit a difficult way, to get out from strict liability.

If you have any questions about this post, please contact Bob Cosgrove at

Halloween Party Tricky for NJ Tort Claims and Charitable Immunity

A  Halloween party family fun night turned tricky for the defense of a Board of Education and non-profit Home and School Association in litigation arising from the claims of a fifth grade attendee who fell and badly fractured his femur.  Although he fell near a spilled liquid, there was little evidence about how or specifically where he fell.  The plaintiffs sued the school Board and Association in Vinci v. Clifton Board of Education.

The plaintiffs’ claims against the Board, a public entity, were subject to the New Jersey Tort Claims Act.  Plaintiff pursued two theories:  the spill created a dangerous condition on public property and the Board failed to properly supervise the party.  The first of these was dismissed on a summary judgment motion since the court disagreed that the entity acted palpably unreasonably, the standard of proof required for this theory.  The negligent supervision claim proceeded to trial.

The plaintiff’s claims against the non-profit Association were subject to the Charitable Immunity Act.  While the motion judge granted summary judgment with respect to negligence allegations, the plaintiff was permitted  to amend the complaint to include a gross negligence  count that proceeded to trial.

At trial, a jury found the Board negligently supervised the event and that the Association was grossly negligent.  However, in a tricky twist, the jury did not find that these transgressions proximately caused the plaintiff’s injury.

The plaintiff appealed.  The Appellate Division affirmed the partial summary judgments and the jury no cause of action.  However, in one last twist, the court upheld the dangerous condition dismissal against the Board but on a notice issue rather than the palpably unreasonable standard.  With the no cause affirmation, the Appellate Division chose not to further consider the defendants’ appeals of the motion court’s decision to not fully resolve the claims on motion.

For more information, contact Denise Fontana Ricci at


Capture a fall on surveillance? Better preserve that evidence or else!

In this day of ubiquitous surveillance cameras, businesses should be proactive in maintaining footage in the event of incidents on premises. Sanctions for spoliation of such evidence are unpredictable and can be devastating to a defense.

In the personal injury action Giuliano v. 666 Old Country Road, LLC and Sutton & Edwards Management, LLC. a plaintiff moved to strike a defendant’s answer on the basis of its “intentional or negligent” spoliation of evidence. Apparently Sutton inadvertently failed to preserve video footage of the plaintiff’s fall.

At trial, the court granted plaintiff’s motion and struck Sutton’s answer as a sanction for spoliation of evidence. In a somewhat contradictory decision, the 2nd Department reversed in part. The appellate court noted that the trial judge has “broad discretion in determining sanctions for spoliation of evidence” and found that Sutton did in fact destroy the video footage in question. However, the 2nd Department found that because the plaintiff was still able to prosecute her claim without the footage, a stricken answer was not warranted. The court held, notwithstanding that choice of sanctions is within the trial judge’s discretion, that under the circumstances in that case, an adverse inference charge was more appropriate.

The salient point here is the unpredictability of the sanctions a Court may hand down for spoliation of evidence. If a party “intentionally or negligently disposed of critical evidence, and fatally compromised the movant’s ability to prove a claim or defense,” the sanction may range from no sanction at all to a stricken answer and preclusion of a liability defense.

Thanks to Brian Gibbons for his contribution.

For more information, contact Denise Fontana Ricci at



WCM Awarded Dismissal of Queens County, NY Premises Liability Case

New York, NY 

Associate Edward Lomena obtained the dismissal of a Queens County, NY premises liability case. In Collins v. Top Notch Construction, the plaintiff allegedly sustained injuries when he tripped and fell in front of his home on April 20, 2005. The plaintiff claimed that Top Notch Construction negligently left construction debris and loose planks on the exterior front stoop landing and common area. The plaintiff passed away in 2006 and the matter was stayed so that an administrator could be appointed and substituted as the plaintiff.

No administrator was ever appointed. As such, we moved to dismiss the action for failure to substitute in a timely manner. The decedent’s wife opposed the motion on the grounds that it was her intention to be appointed and continue on with the action. Notwithstanding her opposition, the trial court granted the motion and dismissed the complaint, holding that her delay in seeking the substitution was unreasonable.

WCM Awarded Summary Judgment in New York County, NY Premises Liability Case.

Associate Edward Lomena was awarded summary judgment in a New York County property damage case. In Sherle Wagner v. Consolidated Edison of New York, Inc., MECC Contracting Inc., the plaintiff, a manufacturer of high-end bathroom fixtures, allegedly sustained $7,000,000 in property damage as the result of a flood in its show room. The damage was the result of water and oil entering a Con Edison vault located on the sidewalk outside of the building and a faulty sump pump in the vault. The plaintiff claimed that work that MECC performed in the roadway a month prior to the incident may have caused debris to build up in the vault, which thereafter caused the pump to malfunction.

At the close of discovery, we moved for summary judgment on the grounds that MECC did not cause or create the condition that resulted in the plaintiff’s property damage, and there was no nexus between the work MECC did in the roadway and the failure of the sump pump in the transformer vault. The trial court agreed with our analysis and dismissed the plaintiff’s claims against MECC.

An Owner’s Lack Of Supervisory Control Is Not A Defense In A NY Labor Law § 200 Claim

In Raffa v. The City of New York, the plaintiff was injured when he slipped and fell on a sheet of ice at a construction site, while walking from his car to a construction trailer. The plaintiff testified that two days prior to the accident, he complained to the foreman and superintendent about snow and ice covering the area where he fell.  Additionally, the day prior to the plaintiff’s accident, the project manager was notified that another worker slipped and fell on ice in that area.

The plaintiff sued the owner of the property, the City of New York, and the general contractor, U.R.S. Corp. under Labor Law § 200 and common law negligence in the Supreme Court, Bronx County. The City of New York moved for summary judgment on the grounds that as an owner, it had no supervisory control of the plaintiff or control over the means, methods or materials used in the work. The court agreed and granted the City of New York’s motion.

On appeal the Appellate Division, First Department reversed the lower court’s decision. The First Department held that because the plaintiff’s Labor Law § 200 and common law negligence claims are based on a dangerous condition on the site, not on the means, methods or materials used in the work, the only issue was whether the City of New York had notice of the condition, not whether it excercised supervisory control over the manner of performance of plaintiff’s work. Thus, there was a question of fact as to whether the City of New York had actual or constructive notice of the icy condition that caused the plaintiff’s accident.

Thanks to Ed Lomena for his contribution.

For more information,  contact Denise Fontana Ricci at


Visual Artists Rights Act in Action

Enacted in 1990, the Visual Artists Rights Act (“VARA”) bestows upon the living artist “the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation…” (17 USCA § 106(a) (2) ).

Cady Noland, the creator of a print on aluminum entitled Cowboys Milking (“the work”) did just that when Noland discovered that Sotheby’s was about to offer the work at auction.  Noland disclaimed authorship of the work on account of apparent damage and demanded that Sotheby’s withdraw it from auction.  Sotheby’s implored Noland to change her position but to no avail.

With Noland’s refusal, Sotheby’s immediately contacted the consignor Marc Jancou Fine Art, LTD, to report that it was withdrawing the print from auction, citing Noland’s disavowal of the work.  Bitterly disappointed, Jancou sued Sotheby’s contending that a)  Sotheby’s breached its contract to offer the work at auction; and b) Sotheby’s breached its fiduciary duty to Jancou (presumably on the theory that Sotheby’s permitted Noland to inspect the work without Jancou’s knowledge).

In Marc Jancou Fine Art, LTD v. Sotheby’s, Inc., New York County Judge Ellen M. Coin, on November 13, 2012, dismissed Jancou’s suit, affirming the vitality of VARA.  First, Judge Coin cited to the consignment agreement which gave Sotheby’s the right to withdraw any work from auction when there “is doubt as to its authenticity or attribution,” finding that Noland’s assertion of her right under VARA created more than “doubt” as to attribution – – and thus Sotheby’s was well within its right to withdraw the work. 

Second, Judge Coin was equally dismissive Jancou’s fiduciary theory, holding:

 “There is no indication that Sotheby’s withdrawal of the print item was made in bad faith.  On the contrary, Sotheby’s has established that there was ample support for its determination that there was doubt as to the print’s attribution, and thus Jancou’s claim for breach of fiduciary duty must be dismissed.” ( 246-248)

If you would like more information about this post or other VARA issues, please contact Dennis Wade at

Fall From Ladder Not Enough For NY Labor Law § 240

In Noble v. 60-261 Madison Avenue, LLC, the First Department once again re-affirmed that a fall from a ladder, without more, does not establish a violation of Labor Law § 240.

In Noble, the six-foot tall plaintiff claimed that he was standing on the sixth or seventh rung of a ten-foot ladder in order to perform work on the 10 foot, 7 inch high ceiling when a piece of conduit pipe on which he was holding for support, broke free, causing him to fall. The Supreme Court granted the plaintiff’s motion on Labor Law § 240, but the First Department reversed, finding an issue of fact.

The First Department denied plaintiff summary judgment for a few reasons, one of them being that there was no evidence that the plaintiff was forced to lean or had to reach to perform his work and thus, an issue of fact existed as to whether the plaintiff actually stood high enough on the ladder as would warrant securing the ladder beneath him.

The implication here is if the ladder did not need to be secured because plaintiff was standing on a lower rung than he claimed and there was no defect in the ladder, there would be no evidence to show that the ladder was inadequate.

Thank you to Gabriel Darwick for his contribution.

For more information, contact Denise Fontana Ricci at


Bed Rails – Consumer Product or Medical Device?

Who would have thunk it , but bed rails are apparently rather dangerous for the elderly and strangling deaths are somewhat common.  This has resulted in a rash of new medical malpractice/product liability/negligence claims.  As this article makes clear, one of the interesting questions raised in the claims is whether bed rails are a consumer product or a medical device.  The answer, which is uncertain, is significant as medical devices are generally afforded greater legal protections than mere consumer products; medical devices are also more highly regulated.

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



Third Party Action Dismissed For Failing to Prove “Acquired Brain Injury” (NY)

In Anton v. West Manor Construction Corp et al., the First Department highlighted the difficulty in proving that a plaintiff suffered a “grave injury” when he is claiming a brain injury.  By way of background, New York only permits a third party claim against an employer when its employee has sustained a “grave injury.” One category of “grave injury” is “an acquired injury to the brain.”

In Anton, a construction worker was injured when a cinder block was dropped from a height and hit the plaintiff. Plaintiff claimed he was permanently disabled and could no longer work. Relying on Rubeis v. Aqua Club, Inc. 3 N.Y.3d 408 (2004), the Appellate Division agreed that plaintiff’s inability to work was caused by injuries to his neck and shoulder, not by an acquired injury to the brain. In addition, plaintiff’s daily headaches and inability to focus were not sufficient to satisfy the acquired brain injury standard.  As a result, all common law negligence claims against plaintiff’s employer were dismissed because plaintiff did not sustain a “grave injury” within the meaning of Workers’ Compensation Law §11.

Thus, when litigating employee/employer “brain injury” cases, a thorough evaluation of the injuries must be conducted to determine whether or not the injury meets the Rubeis standard, i.e. whether the injuries are directly related to the brain.

Thanks to Alison Weintraub for her contribution to this post. If you have any questions or comments, please email Paul at

Expert Opinion Permitted on Issue of Who Performed Product Alterations (NJ)

The N.J. Appellate Division recently considered the factual foundation required to admit opinion testimony in a case involving the alteration of heavy machinery.

In Carneiro v. John Deere Dubuqueworks, plaintiff was struck by a backhoe while replacing water pipes at a construction site. Plaintiff was employed by defendant, Central Pipes, that was hired by defendant, P.M. Construction (“P.M.”), the general contractor and owner of the backhoe. P.M. had purchased the backhoe from Jesco, Inc. five years prior. At the time of purchase, P.M asked Jesco to install an “alternate lever arrangement” for the backhoe arm controls. Of significance, the manufacturer of the equipment was granted summary judgment earlier during discovery and the plaintiff settled his claims against P.M. and Jesco so the sole issue being tried was the allocation of liability between P.M. and Jesco.

The operator of the machine testified that when he rotated his seat to face the front of the bucket-loader, it came in contact with the lever, which caused the backhoe’s arm to strike the plaintiff. Jesco’s expert found that the levers were deliberately modified as they were positioned three inches closer to the operator then when Jesco had made its changes to the original design of the control console. In addition, the operator’s seat showed signs that it had been scraped by the lever multiple times. A Jesco employee who inspected the backhoe after the incident also testified that the levers were out of alignment.

P.M. argued that there was no evidence to support the opinion of Jesco’s expert that P.M. modified the lever system, as the scrape marks could have been etched subsequent to the subject accident. Jesco responded that if the jury found that the original modifications were proper, there would be strong circumstantial evidence that P.M. performed a subsequent alteration.

The jury found P.M. 95% liable for plaintiff’s injuries. The trial court noted that the jury received a lot of information regarding the levers. It denied P.M.’s motion for judgment notwithstanding the verdict, finding that it was not unreasonable for the jury to find that the levers were modified in some way by P.M. P.M. appealed asserting that the expert opinion was unsupported by the factual record.

The Appellate Division upheld the jury verdict, finding an adequate factual foundation as Jesco’s expert performed a personal inspection of the backhoe, reviewed the relevant discovery and rendered his opinion within a reasonable degree of engineering probability. It also found no error in the jury instruction that the backhoe operator’s negligence could be considered in context of Jesco’s claim that P.M. failed to provide proper site supervision.

Thanks to Andrew Marra for his contribution of this post. If you have any questions or comments, please email Paul at