Monthly Archives: August 2013

A Plaintiff With Military Training Assumes the Risks Associated with Mixed Martial Arts (NY)

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Under the doctrine of assumption of risk, a participant engaging in a sport or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport. The assumption of risk doctrine considers the appreciation of risk measured against the background of the skill and experience of the particular plaintiff.

In Tadmor v. New York Jiu Jitsu Inc., plaintiff allegedly suffered an injury to his left knee while sparring with another student in a mixed martial arts class. It was plaintiff’s first day in the advanced mixed martial arts class. He was injured while sparring with a “stockier” opponent. Notably, plaintiff expressed his concern about the match and only accepted the risk once the instructor had reassured him. The trial court denied defendant’s motion for summary judgment, finding that plaintiff raised questions of fact as to whether  he  assumed the risk of injury through his participation in the advanced class.

The First Department reversed.  The court noted that plaintiff had participated in sparring sessions within the beginner classes for over a month and a half. Additionally, plaintiff’s experience included service in the Israeli army and 10 weeks of combat training (including instruction on hand-to-hand attacks).

Finally, plaintiff admittedly filled out an application where he wrote “yes” to prior martial arts experience and wrote a description of that experience as “survival krav maga.”

Therefore, when determining if a plaintiff has assumed the risk of a recreational activity, it is important to question him about all of his training and experience. It is also critical to review the plaintiff’s applications. As Tadmor demonstrates, the Appellate Division will consider all aspects of a person’s background when determining if the doctrine applies.

Thanks to Bill Kirrane for his contributions to this post.  For more information, please contact Paul Clark at .

An Expert Opinion Doesn’t Always Defeat A Summary Judgment Motion (NJ)

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In Muccia v. El Coronado Condo Assn, an unpublished opinion, New Jersey’s Appellate Division affirmed the trial court’s granting of summary judgment in a personal injury action to defendant, a resort association. Plaintiff rented a condominium in the resort and while inside her rented unit, tripped over one step leading from the living room to the foyer.

At the close of discovery, defendant moved for and was granted summary judgment. Plaintiff appealed on the basis that her expert report created a triable issue of fact as to whether a hand rail was required for the step. The Appellate Division, however disagreed with plaintiff and affirmed the trial court’s decision.

The court highlighted that plaintiff’s expert report was issued five days prior to plaintiff’s deposition and months before any defense deposition. In addition, the court emphasized the assertions in defendant’s expert report that the code provisions cited in plaintiff’s expert report were inapplicable to the particular interior step at issue. Finally, the court noted that Bureau of Housing Inspection reports from 2004 and 2009 found the particular condo unit where plaintiff was injured to be absent of any violation (information also contained in defendant’s expert report).

Because plaintiff did not dispute the assertions in defendants expert report in her opposition to the summary judgment motion, the Appellate Division found that plaintiff’s expert report did not raise a triable issue of fact.

Special thanks to Alison Weintraub for her contributions to this post.  For more information, please contact Paul Clark at .

Has Football Been Saved?

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Unfortunately, Labor Day is upon us here in the States and summer will (unofficially but practically) come to an end in just a few days. But every cloud has a silver lining and for many Americans, the start of the college and professional football seasons is that silver lining.

We, here, at WCM have previously commented on some of the challenges faced by football. Among those challenges was the federal class action lawsuit filed by former professional football players against the NFL for failure to warn about the risks of concussions. A key ruling was expected this week from USDC Judge Brody of the EDPA. But, instead of a ruling, we have received word of a $765,000,000 agreement in principle. The central aspects of the settlement are that: (a) the NFL is not admitting any wrongdoing; and (b) the settlement cost, for a league that generates $10,000,000,000 per year in revenue, is a mere rounding error.

The question that remains (and that is already being asked) is — what effect will this have on youth or amateur athletics? Our thought is that the absence of a NFL admission of wrongdoing will mean that business will continue as usual in the youth or amateur levels — especially in those parts of the country where football is king. This means that the focus of plaintiffs’ attacks will like be on youth and amateur leagues on a going forward basis.

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

Pennsylvania Weighs in on GPS Driving.

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This appears to be the season for decisions on distracted driving.

In Rockwell v. Knott, et al., a case of first impression, a Pennsylvania trial court was faced with the question of whether an individual who was involved in a car accident while looking at a GPS (or sat-nav for our friends across the pond) screen, can be liable for punitive damages.

In a lengthy 20 page decision (which is quite unusual for Pennsylvania), Judge Terrence Nealon of the Lackawanna County trial court ruled that the answer is “maybe.”

While denying the request for punitive damages in the case before him, Judge Nealon wrote that “a motorist’s use of a GPS device may, or may not, cause distracted driving depending upon the type and placement of the GPS device and the concomitant operation of the vehicle….[In making that decision, the court must look at] the position of the GPS device, the extent of the driver’s distraction and the distance travelled by the vehicle during that period of diversion.” Judge Nealon noted that if distracted driving evidence was produced, a jury would get to decide whether that distraction constituted reckless indifference such that an award of punitive damages was appropriate.

Just something else to worry about as our reliance on technology in cars ever increases.

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

If A Tree Falls In The Forest, Does It Make A Claim? (NJ)

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In the recent unreported decision of Defreese v. Spizziri and Township of Mahwah, New Jersey’s Appellate Court upheld the dismissal of the plaintiffs’ complaint based upon the immunities of the New Jersey Torts Claims Act.

On August 10, 2008, Defreese was driving her car when a tree fell on top of it causing her and her mother to be injured.  The Township had a tree preservation ordinance governing removal of trees.  The tree at issue was located in a heavily wooded area, approximately 32 feet from the center of the road.  There were no prior complaints concerning that specific tree.

Defreese’s liability expert opined that the subject tree had been dead for a number of years and that the decay was visible.  Moreover, in the years prior to the accident, the Township received sporadic reports regarding issues with other trees on the same road.  The defendants moved for summary judgment claiming immunity from suit under the Torts Claims Act.  The court granted the motion.

On appeal, Defreese argued that the Township had notice of the tree’s dangerous condition and it was palpably unreasonable for the Township not to address the condition.  The Appellate Court disagreed, noting that the tree was not in a readily visible area and Township employees driving on the roadway would not have been able to see the tree.  Moreover, it was unreasonable to expect Township employees to inspect every tree in the woods adjacent to the roadway.  Additionally, the court noted that the sporadic complaints regarding other trees did not constitute constructive notice of a dangerous condition.

Special thanks to Johan Obregon for his contributions to this post.  For more information, please contact Paul F. Clark at .

Criminal Double Faults; John McEnroe Nets Gorky’s Pirate II

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When John McEnroe partnered with Lawrence Salander to purchase Arshile Gorky’s Pirate II back in 2004, he could not have imagined that he would eventually have to step into a different kind of court just to get back what was rightfully his.  But that is exactly what he did in The Dorothy G. Bender Foundation, Inc. and John McEnroe v. Carroll, after Salander, his partner in the joint venture, traded the painting away without his knowledge.

When McEnroe agreed to purchase the painting with Salander, the now infamous fraudster committed his first fault by entering into a similar arrangement with Morton Bender to purchase the same painting.  After taking money from McEnroe and Bender, Salander purchased the painting in 2004 and led both men to believe that Pirate II belonged to them.  Two years later, he committed his second fault when, unbeknownst to McEnroe and Bender, and using the name of a fictional entity, he swapped Pirate II for two lesser valued works from Joseph Carroll in 2006.  After learning that Carroll was in possession of their painting, McEnroe and Bender filed suit to recover it.

Article 2 of the Uniform Commercial Code usually protects purchasers of fine art when the work was entrusted to a merchant who deals in goods of the kind.  The test is whether the buyer, without knowledge that the purchase violates the rights of another, bought the work in the ordinary course of business.  But like many rules in the legal world, this one has exceptions; and Judge Kornreich found that one of them applied.

Because art dealers have knowledge of their trade, a heightened standard of commercial reasonableness applies to their transactions.  This includes a duty to investigate when “red flags” are raised about a potential sale.  In this case, the court found it significant that Carroll obtained Pirate II by trading two works significantly lower in value, failed to inquire into the existence of Salander’s fictional entity that originally aroused his suspicions, and ignored a provenance statement that did not list a current owner of the work.  According to the court, acquiring Pirate II under these circumstances did not meet the UCC’s standard of commercial reasonableness.  Accordingly, the court ruled that McEnroe was entitled to have his property returned.

McEnroe could not have known he was dealing with a fraudster when he purchased Pirate II in 2004.  Fortunately for him, the result he obtained in the New York Supreme Court was just as favorable as those he routinely earned on the tennis court.  Despite the protections afforded to bona fide purchasers by the UCC, McEnroe was undoubtedly happy to learn that when fairness dictates a result, courts of law can indeed be serious.

Special thanks to Michael Gauvin for his contribution to this post.  For more information, please contact Dennis M. Wade at .

Doctor’s Delay In Providing Opposing Affidavit Doesn’t Warrant Threshold Summary Judgment (NY)

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In Wilson v. Rotondi, the plaintiff was injured in a motor vehicle accident. The defendant moved for summary judgment because the plaintiff did not sustain serious injury as required by the Insurance Law.

Plaintiff’s attorney failed to oppose the motion.  The motion was initially adjourned to allow plaintiff time to secure a report from the treating neurologist.  However, on the adjourn date, plaintiff’s counsel had not obtained the affirmation from the physician to submit to the court.  Therefore, the court granted defendant’s motion for summary judgment “on default.”  The plaintiff moved to vacate this order and submitted an affidavit from her treating chiropractor.  The trial court denied the plaintiff’s motion to vacate finding plaintiff failed to demonstrate a reasonable excuse for the failure to respond or provide a potentially meritorious defense to defendant’s motion.

The Second Department reversed the decision. Although the trial court had the discretion to grant the motion on default, the Appellate Division found that plaintiff’s counsel did not exhibit a “pattern of willful neglect.” Rather, the delay was caused by the treating physician who failed to timely provide his report.  Therefore, the plaintiff would not be blamed for his client’s doctor’s delay.

The Appellate Division then found that the defendant did not establish a prima facie entitlement to summary judgment.

This case is a good example of the Appellate Division’s preference to decide cases on the merits. Still, the case does allow attorneys to blame third-parties for a failure to timely oppose a motion. Here, the plaintiff’s counsel neglected the motion and the Appellate Division was unwilling to dismiss the case.  Therefore, even if a party fails to timely oppose a motion, an attorney should still request the trial court decide a motion for summary judgment on the merits.

Specials thanks to Anne Mulcahy for her contributions to this post.  For more information, please contact Paul Clark at .

Cell Phone Update: Potential Liability for Texting a Driver (NJ)

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What did we do before texting was invented? Although some people believe that it is quaint and outdated, we actually spoke to each other. Sometimes we talked by telephone or in person. Now, texting is a preferred method of communication with its own grammar, spelling and acronyms.

Like any new techology, texting has a dark side. At its worst, it can distract drivers from the hazards of the road, sometime with fatal consequences. We know that a “texting driver” may have both criminal and civil liability if an accident ensues but what about someone who texts a driver who then causes  a serious accident? Can the third party who sent the driver a text be liable as well?

In Kubert v. Best, Kyle Best, age 18, was driving his pick-up up truck when he apparently received a text message from his 17 year old friend. Momentarily distracted by the text, he crossed the double yellow line and struck a couple riding a motorcycle, causing them both serious personal inuries.  The couple sued Kyle as well as the friend who sent him the text.   The lower court ruled that the texting friend had no duty to refrain from sending the text and the plaintiffs’ appealed.

The Appellate Division affirmed the dismissal of plaintiffs’ complaint but held that a person may be liable for sending a text message to the driver of a motor vehicle only if he knows or has reason to know that the recipient will read the text while driving. In this case, plaintiffs’ proof fell short of the mark so the dismissal was affirmed.  But the door is now wide open to impose liability for an accident on a person not physically present in the motor vehicle if the sender of a text is aware that the receipent may receive and review the text while driving.

If you have any questions, please email — or text– Paul at

 

Court Excuses Barred Claim When Insured Lulled Into Inaction By Insurer (NJ)

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In Raviv v. Farmer’s Insurance Group (erroneously named rather than the appropriate insurer, 21st Century Insurance Company), plaintiff Raviv was injured in December 2009 in a motor vehicle accident while operating a vehicle owned by her friend that was insured by GEICO.  Raviv promptly notified GEICO of her claim and affirmed that she had no other source of insurance.  GEICO dutifully issued Personal Injury Protection benefits for Raviv’s ongoing medical treatment.

Raviv lived with her sister at the time of the accident, and less than two years following the accident, it was discovered that Raviv’s sister carried an automobile policy through 21st Century Insurance Company at the time of Raviv’s accident.  21st Century was notified of Raviv’s claim in November 2011.

After discussions between Raviv’s attorney and counsel for the two carriers, 21st Century issued a reservation of rights letter preserving its right to a full investigation of the claim.  Shortly thereafter, GEICO discontinued coverage on the theory that 21st Century was required to extend benefits to Raviv where she was the resident relative of its insured, Raviv’s sister, at the time of the subject accident.  Two months later, in February 2012, 21st Century advised Raviv that the statute of limitations on her PIP claim had tolled in December 2011.

In upholding the trial court’s decision denying dismissal of Raviv’s complaint based upon the statute of limitations, the Appellate Decision held that 21st Century “lulled” Raviv into believing that PIP coverage would be afforded to her based upon negotiations between all three parties, as well as 21st Century’s demand for certain claim related information from Raviv after the statute had run.  The court further found that Raviv was not to blame in the delay to identify the appropriate carrier and that 21st Century should not be excused from its failure to properly investigate Raviv’s status as a resident relative entitled to coverage prior to the tolling of the statute of limitations.

 Thanks to Emily Kidder for her contribution to this post.  If you would like more information, please write to Mike Bono.

Insurance Limits Must be Exhausted by Payment (NY)

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Anyone who grew up in the 1980’s is familiar with the “Commodore 64” home computer.  The company filed for bankruptcy in 1994, but its directors were recently involved in an interesting case involving excess insurance coverage issues.

In Ali v. Federal Insurance Company, the directors sought coverage under their multi-tier insurance policy.  The directors were insured by a “tower” system – namely, each excess policy would be triggered when the limits of the policy below it had reached.  The policies contained an “exhaustion” clause which provided that the excess insurance would not apply until  all of the underlying limits had been exhausted, “solely as a result of payment of losses thereunder.”

Two of the excess carriers in the tower had become insolvent, including one which had issued an excess policy that contained limits of between $10 million and $15 million.  Because the $10 million excess carrier had gone under, the insureds sought coverage under the Federal excess policy that provided coverage in excess of $15 million.  The insureds argued that because they were not able to obtain coverage for the amount of liability of $10-15 million, the Federal policy dropped down to cover that amount of liability.  The Second Circuit disagreed and relied on the specific policy language that provided coverage where the underlying policies were exhausted as a result of “payment” of the loss, not merely liability above that amount.

In reaching this decision, the Second Circuit also made two interesting points.  First, this is limited to the context of third party liability policies, and did not apply to the first party context.  For example, an insured seeking coverage for its own property does not have to force a primary carrier to pay him before reaching an agreement with the excess carrier.

Second, the Court noted that if it allowed the upper limits to be exhausted by liability alone, the insured could artificially inflate the structure of any settlement in order to tap into these higher limits, and that the requirement of actual payment afforded the insures some protection against the threat.

Thanks to Mendel Simon for his contribution to this post.  If you would like more information, please write to Mike Bono.