The Unpredictable Nature of Pennsylvania Products Law

Products liability law in Pennsylvania has become increasingly unpredictable over the years.  The unpredictability, however, may finally be coming to an end.  The Pennsylvania Supreme Court has recently granted allocator in Tincher v. Omega Flex where many predict the Court will finally rule on whether the strict liability analysis of Section 402A of the Second Restatement will be replaced by the Third Restatement.  The Third Circuit has twice opined that the state Supreme Court is likely to adopt provisions of the Third Restatement, yet the Court has consistently failed to directly address this issue.

If the Court does adopt the Third Restatement, this will mean a change in Pennsylvania products law.  Currently, the Second Restatement focuses its analysis on the intended user and that user’s intended use of a product.  The Second Restatement also does not include the concept of negligence.  Conversely, the Third Restatement focuses its analysis on the foreseeable risk of harm of a product and whether an alternative design could have minimized or eliminated these risks.  The Third Restatement also introduces the concept of negligence into the analysis.

There are diverging opinions on whether the adoption of the Third Restatement would benefit plaintiffs or defendants more.  Some speculate the Third Restatement would be more favorable to defendants as it requires the plaintiff to provide additional proof as compared to the Second Restatement.  Others note the Third Restatement would benefit plaintiffs, specifically the injured bystander, as they are not intended users of a product a key portion of the Second Restatement’s analysis.  However, regardless of the potential benefits to either plaintiffs or defendants, if the Court does definitively rule as to which Restatement applies; this will offer some much needed clarity to Pennsylvania products law.

Special thanks to Colleen Hayes for her contribution to this post.  For more information, please contact Nicole Brown at


Plaintiffs Can Sleep Tight. If the Bedbugs Bite, They Can Sue (NY)

In Bour v. 259 Bleecker LLC, a tenant brought suit against her landlord for renting an apartment to her without disclosing that it had been infested with bedbugs.  Despite the fact that she had not sought any medical treatment, her lawsuit included personal injury claims, and allegations of negligent and intentional infliction of emotional distress.  Additionally, she sought punitive damages against the landlord.  But the trial court dismissed the action on summary judgment.

On appeal, the Appellate Division, First Department,  affirmed dismissal on the negligent infliction of emotional distress claim, stating that the plaintiff failed to show how defendant’s failure to maintain the property in a reasonably safe manner unreasonably endangered or caused her to fear for her safety.  The Court also agreed that the intentional inflection counts could not be sustained, because even though the defendant leased the apartment to the plaintiff while aware of — and not disclosing — bedbug history, that conduct did not rise to the level of outrageous conduct required.  Most importantly, the Court cited to the fact that at the time the lease was executed, NYC Administrative Code Section 27-2018.1 had not yet been enacted and there was no statutory legal obligation for landlords to provide notice of bedbug infestation history to prospective tenants.

The Court also affirmed dismissal of the punitive damages claim, as the landlord’s actions did not rise to the level of pervasive or grave misconduct of a quasi-criminal nature affecting the public in general.

However, the Court did not add insult to injury and allowed the personal injury claims to go forward.  Although the Court recognized that the lack of medical treatment could impact the monetary value of the claim, the fact that the plaintiff submitted both documentary and testimonial proof of the bed bug bites was sufficient to allow the claims to proceed.

Thanks to Michael Nunley for his contribution to this post.  If you would like further information about this case, please write to Mike Bono.

Constructive Notice Caught On Tape (NJ)

In the recent decision of Marina Andara v. Wal-Mart Stores East, New Jersey’s appellate court relied on surveillance footage of the plaintiff’s accident to rule in favor of the plaintiff on the issue of constructive notice.  The plaintiff alleged that she fell due to water on the floor at Wal-Mart near the self service counter.  Surveillance footage of the incident showed the plaintiff’s fall and the subsequent clean-up by a Wal-Mart employee.

Wal-Mart moved for summary judgment, alleging that they did not have actual or constructive notice of water on the floor.  With their motion, Wal-Mart submitted an affidavit of an employee who asserted that she walked through the area five minutes before the plaintiff’s fall and there was no water on the floor.  The surveillance footage revealed that the employee was in the area, but did not necessarily confirm that an inspection had taken place.  Moreover, the footage did not show anything being spilled on the floor for at least an hour before the incident, leading one to believe that the wet condition existed for over an hour.

The appellate court found that, when viewing the facts in the light most favorable to the plaintiff, a rational jury could find that Wal-Mart had constructive notice of the water prior to plaintiff’s fall and reversed the lower court’s decision that had dismissed the plaintiff’s complaint.

Special thanks to Heather Aquino for her contributions to this post.  For more infromation, please contact Nicole Brown at


Passageway to Port O Potty Protected Under New York Labor Law (NY)

In Alfano v. LC Main, LLC, plaintiff slipped and fell on ice in front of an outdoor portable toilet while working at a construction site.  Plaintiff alleged violations of New York Labor Law §§ 200, 240 and 241(6), predicated on 12 NYCRR §23-1.7(d).  Since all parties agreed that the area where plaintiff fell was on ground level, the court dismissed the Labor Law § 240 cause of action (“fall from height”).  The court would not dismiss the Labor Law §241(6) cause of action because though the portable toilet was in a common area of construction, to access it, the workers had to walk through a path of fenced in materials demarcated on one side by dumpsters and on the other side by stockpiles of construction materials.  As such, to get to the portable toilets, plaintiff had to walk through a “passageway or walkway” as contemplated by 12 NYCRR §23-1.7(d).

Labor Law cases are extremely fact specific.  If there is any remote possibility that an action can fit into a Labor Law category, courts will typically find a way to do so.  As such, it is important to analyze labor law applicability–or lack thereof–early on, to appropriately defend your case.

For more information about this post, contact

Long Island Insurance Fraudster pleads Guilty

Insurance claim professionals have all experienced situations where litigation costs and the risks of trial have necessitated settlements with plaintiffs and claimants who were, lets say, less than 100% credible. Every now and again, its nice to see a fraudulent claimant get his comeuppance.

Richard Roth, a Nassau County resident, tried to collect on a $500,000 life insurance policy by faking his own death. His son reported him missing this past summer, and a massive search began.

As is often said in the world of law enforcement, a detective’s best friend is a dumb criminal, and Roth certainly qualifies. His entire scheme was documented in email correspondence with his son, resulting in recent capture, extradition to New York, and yesterday’s plea in Nassau County Court. He faces 15 years in jail, but will likely receive a lesser jail term, along with probation and restitution to the county.

Interestingly, when asked outside court whether he planned to apologize, Roth replied, “Apologize to who?” First, Mr. Roth, it’s “to whom.” Second, how about apologizing to your neighbors, friends, family as well as strangers – in other words, everyone – whose insurance premiums are all higher than they would otherwise be, because of the costs of investigating fraud perpetrators just like you. Roth may have convinced himself that this was a victimless crime, but insurance fraud affects everyone.

Special thanks to Brian Gibbons for this contribution.

For more information contact Denise Fontana Ricci at


Is the Isabella Stewart Gardner Museum Artwork Hiding Out in Philadelphia?

Last spring we told you about a potential break in the Isabella Stewart Gardner Museum heist. Whether or not the Connecticut mobster was a rat remains to be seen, but it appears that a breakthrough has occurred. It now appears that most of the stolen art was transported (post theft) to Connecticut and Philadelphia, where it might still remain. The FBI is launching a full blown “arthunt” for the missing works – which will include posters throughout Philadelphia and a FBI web page. The hope is that folks will willingly turn over the artwork since the criminal statute of limitations has expired. We’ll continue to track the story, but, just remember, should you happen to insure someone who turns out to have the art, WCM’s Philadelphia office is all too happy to help out. (Not that as lawyers, we ever hope for contentious claims or lawsuits to arise, mind you).

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

Absolute Liability of NY Labor Law for Owners and General Contractors Only

In Giovaniello v. E.W. Howell, Co., LLC, the Second Department provided instruction as to those parties that can be held liable under the dreaded New York Labor Law. Under Labor Law 240 and 241(6), owners, general contractors, and their agents are absolutely liable for violations of those statutes. Prime contractors and subcontractors, on the other hand, will only be liable in limited circumstances. The Giovaniello court clarified those circumstances.

Fratello, one of many prime contractors on the site, moved to dismiss plaintiff’s Labor law 240 and 241(6) causes of action, because it was it did not qualify as an owner, general contractor, or agent. Fratello argued that, as a prima contractor which did not have a contract with plaintiff’s employer, it could only be liable if he was delegated the authority to oversee and control the activities of the injured worker. The Supreme Court and Second Department agreed with Fratello and dismissed the complaint against it.

Two subcontractors also moved for summary judgment dismissing the Labor Law claims, including the § 200 claim. In granting their motions, the court found that liability under §§ 200, 240, and 241(6) cannot be assessed against a subcontractor who did not control the work that caused the plaintiff’s accident.

The court’s holding on Labor Law § 200 as it pertained to the subcontractors is important. Often times, counsel representing subcontractors treat the § 200 and common-law negligence claim identically. They conflate the § 200 and common-law negligence claims because these two claims, as applied to general contractors and owners, are the same. But when it comes to subcontractors, they are not, as demonstrated by Giovaniello. Thus, to obtain dismissal of a § 200 claim against a subcontractor, it must simply demonstrate that it did not control the injury-producing work.

Special thanks to Gabriel Darwick for his contribution.

For more information, contact Denise Fontana Ricci at


No Notice – No Claim Against City (NY)

Notice is key in order to maintain a viable claim against the City of New York for failure to adequately maintain a sidewalk.

In Adamson v. The City of New York,  following a motion for summary judgment, the trial court dismissed the plaintiffs’ complaint and all cross-claims asserted against the City. The tenant of the property abutting the sidewalk (Verizon) appealed the courts order. The record revealed that the City did not have prior written notice of the defective sidewalk condition, as required by Administrative Code § 7-201[c][2], and Verizon failed to demonstrate that the special use exception applied to overcome the prior written notice requirement.

As a result of the City not having notice of the alleged dangerous condition, there was no basis for holding the City liable. The Appellate Division, First Department, upheld the lower court’s ruling dismissing Verizion’s cross-claim against the City on the theory that the City failed to provide adequate lighting.

Special thanks to Johan Obregon for his contribution.

For more information, contact Denise Fontana Ricci at



Certified Mail Without Returned Receipt… Worthless (NY)

In Tower Insurance Co. of NY v. Ray & Frank Liquor Store, Inc. et al, the insurer sought a declaratory judgment with respect to coverage disclaimed to an insured for a claim in underlying litigation.  The defendant insured had given late notice of the claim, and the plaintiff sent a disclaimer in response. The disclaimer was sent via certified mail return receipt requested.  However, at the bench trial, the insurer only produced the letter – not the signed receipt.  The only witness to testify did not personally mail the letter, and no one was produced to testify regarding mail policies in a more general way.

The matter proceeded to trial and the judge ruled in favor of the insurer, finding that it was not obligated to defend and indemnify the defendants.  However, the First Department reversed the trial court’s decision, finding that the insurer failed to adequately demonstrate that the disclaimer letter was actually mailed. Specifically, the insurer’s failure to produce the return receipt or otherwise provide direct evidence of mailing was fatal to its cause.

The moral of the story is that sending a significant document, such as a disclaimer, by certified mail is only the first step.  In order to prove service, there must be testimony by one with knowledge that the document was actually mailed or, if available, a receipt showing actual service was made  offered in evidence.

Special thanks to Georgia Stagias for her contribution.

For more information, contact Denise Fontana Ricci at


Lawyer Inattentiveness Not Extraordinary Enough To Waive Notice for Tort Claims Act (NJ)

In common law, a subject could not sue the sovereign for a tort action.  New Jersey courts abrogated this common law to the displeasure of the Legislature.  The Legislature responded by re-establishing sovereign immunity – but allowing limited exceptions when a person could sue a public entity.  However, in an effort to minimize litigation against public entities, the TCA requires a claimant to give timely notice, i.e. within 90 days so that the claim can be investigated and perhaps resolved outside litigation.   A tardy notice can only be excused for “extraordinary circumstances” – and then only if presented within one year after accrual of the claim. 

This notice provision has been the subject of much scrutiny with many theories advanced to attempt soften its effects.  In D.D. v. UMDNJ, the New Jersey Supreme Court addressed two common themes:  1)  late notice should be excused because of lawyer inattention, either independently offered or in conjunction with a claim that the plaintiff’s medical condition influenced the ability to give timely notice; and 2)  whether oral notice of the claim could be considered substantial compliance.  In short, a divided Supreme court said, no and no.

The majority opinion hewed to the legislative intent that immunity is the general rule and liability is the exception.  Guided by this, the Court held that it was not authorized to grant leave for late notice in a case based upon disclosure of a participant’s medical history in connection with a World AIDS Day program.

Although the plaintiff described physical and emotional effects related to the disclosure, the Court did not consider her circumstances to meet the standard of “severe and debilitating.”    Moreover, combining this with the foibles of her attorney did not create exceptional circumstances.  In fact, the Court found that a claim of attorney incompetence, inattentiveness or malpractice was not an extraordinary circumstance to justify late notice. Thus, medical complaints that do not demand immeidate attention and did not significantly interfere with the pursuit of a claim will not excuse late notice even if coupled with lawyer inattention.

Finally, the required notice must be written.  The Court ruled that oral notice is simply not substantial compliance underof the Act.

For more information, contact Denise Fontana Ricci at