It’s Fair Use And I Don’t Have To Give You Credit

The US Court of Appeals for the Second Circuit has held that a secondary use of a copyrighted work does not require comment on the original artist or work in order to qualify for the fair use defense to infringement under the Copyright Act.  The lower court in Cariou v. Prince, had issued an injunction against Prince and the gallery that displayed his work with respect to their continued altered use of 25 paintings originally found in Cariou’s book.  The lower court also imposed a requirement that the new work had to comment on or refer back to the original work in order to qualify as fair use.  The Court of Appeals disagreed and noted that the law imposes no requirement that a work comment on the original or its author in order to be considered transformative and a secondary work may constitute a fair use even if it serves some purpose other than those identified in the statute, namely criticism, comment news, reporting, teaching, scholarship and research. 

The determination of whether secondary use of a copyrighted work constitutes a fair use turns on several factors, including the purpose of the use, the nature of the copyrighted work, the amount of the portion used in relation to the copyrighted work and the effect of the use upon the potential market for the value of the copyrighted work.  The Court noted that the transformative nature of the work was the heart of the fair use inquiry and held that Prince had presented an entirely different aesthetic from Cariou’s original photographs. 

For more information, please contact Nicole Brown at


No Double Recovery In Pennsylvania UIM Claims

The Eastern District Court of Pennsylvania held in Reinert v. Nationwide Insurance that a Pennsylvania plaintiff injured in a car accident in South Carolina was barred from submitting evidence of his medical bills and wage loss at a UIM trial against his insurer after previously receiving first-party benefits under his insurance policy.   

In reaching its holding, the initial issue addressed by the Court was which state’s law would control, as Pennsylvania and South Carolina’s motor vehicle laws were in conflict.  In its analysis the Court noted that Pennsylvania’s interests under the Motor Vehicle Financial Responsibility Law outweighed South Carolina’s interests under its state’s MVFRL.  The Court further determined that the purpose of Pennsylvania’s MVFRL was to control the costs of insurance; whereas, the purpose of South Carolina’s law was to provide protection for those injured as a result of a negligent driver.  As such, the Court held that Pennsylvania law applied.

The Court then addressed the facts of this case.  Here, the driver of the other car had a liability policy with coverage of $100,000.  Following the accident, the plaintiff had settled his claims against the driver for policy limits.  The plaintiff then sued his own insurance company, which he had a UIM policy.  At that time, the plaintiff had already collected $65,000 in medical benefits and $75,000 in lost wages.  Based on the foregoing, the Court determined that the plaintiff would only be permitted to introduce evidence regarding damages for past, present and future medical bills and wage loss to the extent that he was not paid through his first-party benefits, since Pennsylvania law specifically precluded recovery of benefits previously paid – unlike South Carolina law.   

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

Labor Law Protections Expand Despite Worker Ignoring Safety Instructions (NY)

In Vasquez v. Cohen Bros. Realty Corp., plaintiff initiated an action after her husband died while performing repair work on a drop ceiling at a building the defendant managed.  The decedent was involved in replacing tiles in the drop ceiling of the loading dock.  He and his co-worker used a two-man scissor lift to reach the drop ceiling.  While replacing the tiles, the decedent saw that a fluorescent light was missing from the ceiling grid.  He noticed the light on a nearby exhaust duct and climbed onto the guardrail of the lift to reach the light.  While still on the guardrail, the decedent reinstalled the light and began to replace the ceiling tiles.  He successfully replaced one tile while still standing on the guardrail, but had difficulty with the second tile.  He eventually lost his balance and fell to the ground, fatally hitting his head.

The plaintiff moved for partial summary judgment on her Labor Law 240(1) claims, and the defendant cross-moved arguing that the decedent was a “special employee” and that the Workers’ Compensation Law barred his claims.  The court denied both motions and held that there was an issue of fact as to whether the decedent could have completed his work without leaving the lift.

In reversing the denial of the plaintiff’s motion for partial summary judgment, the First Department granted plaintiff conditional summary judgment, reasoning that the plaintiff still needed to prove that he was not the defendant’s special employee, as there was an issue of fact with respect to who controlled and directed the decedent’s work.

As for the 240(1) claims, the court held that the decedent was working from an elevated height to repair the ceiling and the defendant failed to provide him with an adequate safety device because apart from the lift, the defendant did not supply the workers with harnesses or safety lines.  The idea that the decedent’s decision to leave the lift was the sole proximate cause of his death was rejected by the court, which noted that a simple instruction to avoid an unsafe practice (standing on guardrails) is not a sufficient substitute for providing a worker with a safety device to allow him to safely complete his work.

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

NY’s General Obligations Law § 9-103: A Continued Thorn For Plaintiff’s In Personal Injury Cases Against Landowners

In Ferland v. GMO Renewable Resources, LLC, the estate of Rene L. Ferland, Jr. filed suit against Fund 6 Domestic, LLC after the decedent died when his snowmobile struck the side of a tractor-trailer that was carrying a load of logs on a private logging road.  This road was also used as a snowmobile trail on Fund 6’s property.  Fund 6 moved for summary judgment on the grounds that General Obligations Law § 9-103 entitled it to immunity and that the consideration exception to this provision’s grant of immunity did not apply.

General Obligations Law § 9-103(1) provides that “an owner…of premises…owes no duty to keep the premises safe for entry or use by others for…snowmobile operation…or to give warning of any hazardous condition…on such premises.”  An exception to this exists under G.O.L. § 9-103(2)(b) when consideration is given in exchange for permission to pursue any of the activities enumerated in the section.

The plaintiff contended that the consideration exception applied to this case because Fund 6 entered into recreation leases with various non-party fish and game clubs whereby Fund 6 accepted rent in consideration for the clubs to post the leased premises and use them for limited purposes.  The key language in the lease agreements was the term “other recreational activities” and the plaintiff argued that this term contemplated snowmobiling, thereby allowing the action to proceed against Fund 6.

The Appellate Division disagreed, finding that snowmobile clubs actually maintained the snowmobile trails through volunteer efforts of their members.  Further, the court cited to the lease agreement between Fund 6 and the St. Lawrence County Snowmobiling Association that granted the Association permission to use the property for snowmobiling “without charge”.  From reviewing the record, the court held that the evidence established that the snowmobile trails were open to the public without charge.  Finally, the court gave no credibility to the plaintiff’s attempt to argue that the Association’s use agreement that required it to name Fund 6 as an additional insured on its trail insurance policy, acted as consideration sufficient to trigger the exception.

G.O.L. § 9-103 encompasses fourteen different outdoor recreational activities.  Whenever a suit is brought against a landowner who has permitted recreational use on its property, it is important to remember G.O.L. § 9-103 as a potential shield to liability – and a continued thorn – in plaintiffs’ personal injury cases against landowners.

 Special thanks to Michael Nunley for his contributions to this post.  For more information, please contact Nicole Brown at

Wrestler Does Not Assume the Risk Of Contact With Floor (NY)

New York courts recognize that someone who voluntarily participates in an athletic activity generally  consents to the commonly appreciated risks inherent in the sport.  However, that does not mean that a risk out of the ordinary expectations is subsumed by this assumption of the risk.

In Philippou v. Baldwin Union Free School District, the plaintiff-student was injured during a wrestling match when he was placed in a headlock by an opponent who then tripped on mats that had separated.  The plaintiff and his opponent had been wrestling on two mats that were held together with tape.  During the match, the tape came loose and the two mats separated, causing the plaintiff to injure his arm on the hardwood floor.  The plaintiff sued the school district, who moved for summary judgment.  The lower court denied the motion and the school appealed.

The Second Department upheld the lower court’s decision, finding that assumption of risk associated with athletic activities  applies only to those conditions that are open and obvious.  In this matter, the school failed to show that the improperly secured mats did not unreasonably increase the risk of injury inherent in the sport of wrestling.

Special thanks to Georgia Stagias for her contribution.

For more information contact Denise Fontana Ricci at


Duty to Prevent Assault? … Not In Adult Care Facility (NY)

In Malave v Lakeside Manor Homes for Adults, Inc., the Second Department affirmed summary judgment to the adult care facility defendant, Lakeside, finding it owed no duty of care to its residents for personal injuries caused by another resident.  The court reasoned that the facility had no authority or ability to control the conduct of a third person.

In Malave, the plaintiff was stabbed by another resident during an argument in Lakeside’s lobby.  Plaintiff commenced suit against Lakeside and the resident who stabbed him.  Plaintiff alleged that Lakeside was liable because, among other reasons, it had a duty to protect him from the assaults of other residents.

Lakeside presented evidence that it was an adult care facility.  An adult care facility is defined as a “family-type home for adults, a shelter for adults, a residence for adults or an adult home, which provides temporary or long-term residential care and services to adults who, though not requiring continual medical or nursing care […], are, by reason of physical or other limitations associated with age, physical or mental disabilities or other factors, unable or substantially unable to live independently.”

Lakeside also presented evidence that, as an adult care facility, its residents were free to come and go as they pleased, and that in order to remove a resident from the facility, it would need to commence an eviction proceeding.  Lakeside did not require the issuance of day passes, which would have been indicative of a certain level of authority and control over its residents, who did not relinquish general autonomy.

Courts have imposed a duty of care where a party has sufficient authority and ability to control the conduct of third persons. However, it distinguished the adult care environment since such a facility does not fit into this category.  In this respect, an adult care facility has a much more limited ability than, for example, mental institutions.

Special thanks to Johan Obregon for his contribution.

For more information, contact Denise Fontana Ricci at


Plaintiffs Can’t Have What They Don’t (Timely) Ask For (NJ)

It was “too little, too late” for one New Jersey plaintiff who failed to timely and properly establish a claim for medical damages.  Luna v. Warnock, a case involving an unfortunate motorcycle versus motor vehicle accident, illustrates that mere production of medical expenses does not put a defendant on notice of a plaintiff’s claim for damages, and expert support of a damages claim produced outside of the discovery time frame is to be excluded at trial.

As is customary (and required under Uniform rules), plaintiff provided copies of all medical bills and expenses incurred as a result of his accident in the normal course of discovery.  In an interrogatory response, the plaintiff claimed only $1,200 in unreimbursed expenses.  What plaintiff did not provide within the proscribed discovery period was any information or expert report to inform the defendant that his over $50,000 in medical bills and expenses were unpaid.

Instead, with discovery closed and trial set to begin, plaintiff noticed a de bene esse deposition of his medical expert to take place the day after the first scheduled day of trial.  Plaintiff’s expert testified that the expenses incurred and produced in discovery were reasonable and appropriate.

Thereafter, the trial  was delayed and did not commence until ninety-six days following the expert testimony.  At the time of trial, defendant moved to preclude the expert’s testimony supporting plaintiff’s damages claim, arguing that he had received insufficient notice of the claim.  Plaintiff’s argument against defendant’s application was two-fold: first, he contended that by simply providing documentation identifying the expenses during the initial phase of discovery, defendant was notified of the damages claim and its amount; second, defendant failed to object to the expert’s testimony as to the damages within forty-five days of the deposition as required by court rule.  Defendant’s motion was granted and plaintiff was unable to present evidence of his medical damages.

The jury found the defendant liable and awarded the plaintiff $35,000 for a tibia/fibula fracture with intramedullary rodding – less than the amount of the medical bills.  On appeal, the appellate division was not persuaded by plaintiff’s arguments.  Specifically, the court rejected the plaintiff’s attempt to deflect his failure to identify the amount of his special damages in discovery by placing the burden on the defendant to object to his expert’s  de bene esse testimony.  The court found that, to find otherwise, would exonerate parties from the disclosure requirements of the court rules and enable them to disregard the discovery end date.   The plaintiff had ample opportunity to establish his damages but failed to do so in a timely manner.  In this opinion, the court signaled that rules governing the production and exchange of discovery are not for show, and that any party, who fails to produce discovery timely, will have to live with only the disclosures made.

Special thanks to Emily Kidder for her contribution.

For more information, contact Denise Fontana Ricci at


Expert Needed For Sporting Injury? (NJ)

In the context of sporting injury litigation, a plaintiff must prove that a commercial recreational facility failed to exercise reasonable or due care to provide a safe environment for the athletic activity involved.  This duty or standard of care is balanced against the fact that certain sports carry inherent risks that cannot be avoided by the exercise of due care.  In fact, although New Jersey’s comparative negligence statute has effectively removed the assumption of the risk defense, our courts nonetheless recognize that injuries are not unexpected in the context of athletic endeavors.    So when a plaintiff sets out to prove an athletic facility has breached its duty, the question becomes how can this proof burden be met, i.e. is the topic of common knowledge or must expert testimony be produced.

Recently, the New Jersey Appellate Division considered this issue in the context of an ice skating injury.  In Pugliese v. Red Bank Armory, Judge Bauman granted summary judgment to the Armory for a claim by an eleven year old novice skater who was injured while using a walker on the ice to aid her in her skating.  She claimed that she slipped while skating and caught her leg in the walker apparatus.  She sustained a tibia/fibula injury and underwent closed reduction.

The plaintiff alleged that the Armory should not have allowed walkers on the ice.  However, critically missing from her case was any expert testimony as to the standard of care owed or addressing the condition of the specific walker provided by the Armory.  The plaintiff only produced an expert report from a physician who causally related the injury to her fall but could not opine on the biomechanics of the injury.   At summary judgment, the defendant successfully argued that the plaintiff could not sustain her proof burden without a liability expert on standard of care and that falling on ice was a normal incident of skating.

The appellate division affirmed summary judgment noting that while there is no rule or policy on when expert testimony is required, if the issue to be proven is so esoteric that a juror of common judgment and experience would not be able to form a valid judgment on it, expert testimony is required.  Whether a skating facility should permit walkers is outside the ken of typical jurors.    Without testimony to establish the standard required of a rink, the plaintiff’s case had a fatal flaw.

For more information, contact Denise Fontana Ricci at


Investigator’s Materials: Not As Safe As You Thought (NY)

In New York City Schools Insurance Reciprocal v. Milburn Sales Co., Inc., the Second Department weighed in on the discoverability of party’s investigator’s materials.

Typically, materials prepared in anticipation of litigation or for trial may be obtained only upon a showing that the party seeking discovery has “substantial need” for the materials and is unable to obtain the information without “undue hardship.” The party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation bears the burden of demonstrating that the material it seeks to withhold is immune from discovery by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation.”

In Milburn, a fire occurred at the plaintiff’s premises. On the day of and day after the accident, plaintiff’s investigator, Russo Consultants, was present at the scene. Coincidentally, the fire marshal was also conducting his investigation at that time. Six days after the accident, plaintiff wrote to Milburn and its insurer informing them that, based on the fire marshal’s findings, the negligence of Milburn’s employees may have contributed to the accident. After plaintiff commenced the action, Milburn served subpoenas on Russo for documents and depositions of the Russo employees present on the scene. Plaintiff moved to quash the subpoenas, claiming that the materials were prepared solely in anticipation of litigation. Milburn cross-moved to compel production of the requested materials and for the depositions. The Supreme Court granted plaintiff’s motion and quashed the subpoenas.

The Second Department modified the decision to compel Russo to comply with the subpoena for documents, holding that plaintiff failed to demonstrate that the materials were prepared in anticipation of litigation. One of the reasons for the court’s decision is that plaintiff apparently proffered only an attorney affirmation containing conclusory assertions. This, it found, was insufficient to meet demonstrate that the documents were immune. The second reason was that plaintiff could not demonstrate that, at the time the documents were prepared, it was contemplating a subrogation action.

There are a couple important takeaways from this decision. First, if you are going to assert that documents are immune because they were prepared in anticipation of litigation, you better be able to provide a specific reason why they are immune. Second, if you can support your arguments with more than an attorney affirmation, do so.

Special thanks to Gabe Darwick for his contribution.

For more information, contact Denise Fontana Ricci at


Underinsured Motorist Benefits Exempt from Pennsylvania’s Double Recovery Rule

Recently, the Pennsylvania Supreme Court denied allocatur in the case of Smith v. Rohrbaugh wherein the defendant-appellant contended that underinsured motorist (“UIM”) benefits should constitute first-party payments for the purposes of calculating double recovery under 75 Pa. C.S. § 1722. As a result, the Supreme Court implicitly affirmed the intermediate appellate court’s overruling of Pusl v. Means which had previously insulated defendants from jury verdicts less than the benefits received under a plaintiff’s own policy.

In Smith, the plaintiff was rear-ended when the defendant failed to stop her vehicle in time, causing various damages including physical injuries and lost wages. The plaintiff initially filed a claim for UIM benefits against his own automobile policy and settled for $75,000 before instituting a lawsuit against the defendant. Following a jury trial in which the plaintiff was awarded roughly $50,000, however, the defendant filed a motion to mold the verdict to zero in consideration of the UIM benefits received by plaintiff. While the trial court granted the motion, the Pennsylvania Superior Court ultimately declined to equate the UIM benefits to first-party payments.

Specifically, the Superior Court recognized that its previously controlling decision in Pusl v. Means was wrongly decided insofar as § 1722 of the Pennsylvania Code does not apply to UIM benefits. According to the court, § 1722 provides an exhaustive list of statutorily defined benefits that limit further recovery at law. Included among these benefits are “first-party payments” that are not statutorily defined as incorporating UIM benefits despite the courts’ colloquial tendency to use the terms interchangeably. As a result, the Superior Court expressly overruled its precedent in Pusl and thus removed safeguards that traditionally inoculated defendants from judgments not in excess of UIM benefits received.

Although the Superior Court’s decision in Smith was rendered during the latter part of 2012, the Supreme Court’s recent denial of allocatur tacitly affirms the shift below and should caution defendants against relying exclusively on the double recovery rule as a means of limiting liability.

Thanks to law clerk Adam Gomez for his contribution to this post. If you have any questions or comments, please email Paul at