In Menna v. Walmart, the infant plaintiff purchased jeans from Walmart with decorative rhinestones. The rhinestones were held in place by metal fasteners inside the jeans. When the infant plaintiff tripped and fell, a metal fastener cut her knee. The plaintiff sued Walmart asserting causes of action for strict products liability, breach of express and implied warranty, and negligent manufacturing.
Although the court dismissed most of plaintiff’s causes of action, it found an issue of fact as to whether the jeans were defectively designed. In order to prevail on a motion for summary judgment to dismiss a cause of action for design defect, a defendant must show that the product’s “utility outweighs its inherent danger and demonstrate through expert testimony that it was not feasible to design a safer, similarly effective and reasonably priced product. In Menna, the defendant not only failed to submit an affidavit from an expert, but an employee for Walmart stated in an affidavit that the rhinestones could have been affixed through a heat seal instead of a metal fastener.
Special thanks to Gabe Darwick for this contribution.
For more information, contact Denise Fontana Ricci at .
A unanimous three-judge panel for the Pennsylvania Superior Court declined to apply an auto insurance policy’s “household-exclusion” to an incident where a woman was first thrown from a motorcycle and then hit by an oncoming vehicle. In September 2008, Mr. and Mrs. Swarner were involved in a head on collision with a pickup truck driven by Joshua Bender on an on-ramp in Juniata County. On impact, both were ejected from the motorcycle. Mrs. Swarner landed in a lane of travel where she was subsequently run over.
Mutual Benefit Group insured the Swarmers with respect to auto coverage for their two cars and a truck. The insurance included stackable UIM coverage. However, Mr. Swarmer insured the motorcycle separately. Thus, Mutual Benefit Group disclaimed coverage for the accident which it deemed as related to the motorcycle usage.
In Swarmer v. Mutual Benefit Group, the insurer argued for the application of the four factors established by the Supreme Court in Utica Mutual Insurance v. Constrisciane, often utilized in determining whether an injured party was in fact “occupying” the vehicle at the time of loss. These factors include: a causal connection between the injury and use of the vehicle, “reasonably close” proximity to the vehicle of the person claiming coverage, the person must be vehicle-oriented rather than sidewalk or highway oriented and the person must be “engaged in transaction essential to the use of the vehicle at the time.” While a Juniata County judge granted Mutual Benefit Group’s motion for summary judgment on this basis, the Superior court reversed and remanded this decision in favor of a plain-meaning analysis of the terms “occupying a vehicle.” In doing so, the court declined to follow Utica, but rather adhered to precedent established by Allstate Fire and Casualty Insurance v. Hymes – holding that a plain meaning analysis applied to the interpretation of policy exclusions. Further, the court upheld jurisprudence directing judges to construe insurance policies broadly in terms of coverage, but policy exclusions contained therein more narrowly.
Judge Mary Jane Bowes noted that Swarner is a case strictly concerning a policy exclusion, and is not about granting broad–based UIM/policy coverage. The court in turn viewed this case as two separate and distinct accidents for the purposes of determining enforceability of the household exclusion. As such, because the injured party in this case was no longer “on” or in the process of “getting in, on, out or off” the vehicle when she was run over, she had ceased to occupy the vehicle within the meaning of the household policy exclusion.
Special thanks to Samantha Epstein for her contribution.
For more information, contact Denise Fontana Ricci at .
If you walk onto the floor of a typical American insurance company office, you will see a sea of cubicles (at least for those American insurers that still have offices and do not mandate telecommuting). The cubicles are usually personalized with such things as college football memorabilia, family photographs and, in the case of one claims representative we know, a large buzzard. Such a floor plan stands in marked contrast to a visit to the London marketplace where there are no cubicles, but rather row after row of office tables where colleagues sit side-by-side and face-to-face. Few personal mementos are visible. According to new research, the American approach might be better for personal health and productivity as the absence of office privacy “can lead to emotional exhaustion and burnout.” Is this a case of the American way being better, or simply a reflection of a stiffer constitution across the Pond? You make the call.
For more information about this post, please contact Bob Cosgrove at .
In Morales v. Longview Academy of Extreme Martial Arts, Inc., an 11 year old plaintiff was paired for training with a senior, older, heavier and taller student. The plaintiff fractured his ankle when the senior student performed a round kick that plaintiff attempted to block. At that moment, the instructor had been standing on the side of the judo mat, speaking with the plaintiff’s father while watching the class. Plaintiff sued for improper supervision, and that there was a “mismatch” between the plaintiff and the more senior student. The defendants moved for summary judgment, and submitted an affidavit of a judo expert who stated that in judo it is not against any accepted practice to pair an adult and minor student to engage in judo drills. The court found that the affidavit demonstrated that the defendants were not negligent in pairing the students. In addition, the court found that there was no lack of supervision since the instructor was observing the class while talking to the plaintiff’s father, and even had he been on the mat, it would not have prevented the injury that occurred in the normal course of training. The court granted the defendants’ motion and held that the plaintiff assumed the risk of injury while participating in a contact sport such as judo.
In improper supervision claims, the distance of the supervisor from the students is not the deciding factor, but whether the proximity to the students could have prevented the accident.
In New York, a res ipsa loquitur charge is warranted only where a plaintiff establishes that: (1) the type of accident at issue ordinarily does not occur in the absence of negligence; (2) the instrumentality causing the accident was in the defendant’s exclusive control; and (3) the accident was not due to any voluntary action or contribution by the plaintiff.
Although it is difficult to prove “exclusive control”, this element has been liberally construed by the courts. In fact, the doctrine may still apply even where other parties have access to the instrument.
In Hutchings v Yuter, the plaintiff was injured when a garage door suddenly fell and struck him on the head. The defendant owned the property and maintained a home office in the basement. The First Department found that the doctrine of res ipsa loquitur applied because it was the type of event that does not normally occur in the absence of negligence. Although the defendants claimed others could have had access to the garage door, the Appellate Division found that the plaintiff demonstrated “sufficient” exclusivity of control.
Accordingly, res ipsa loquitur does not require sole physical access to the instrumentality causing the injury. The doctrine can be applied in situations where more than one defendant could have exercised exclusive control of an instrument. The courts have yet to set forth a clear standard defining “exclusive control.” As Hutchings demonstrates, “exclusivity” maybe inferred simply from a party’s ownership of the instrument.
Thanks to Bill Kirrane for his contribution to this post. If you have any questions, please email Paul Clark at
In Hahn v. Canty, the trial court (Orange County, New York) dismissed a claim for punitive damages in a case involving a fatal shooting. In Hahn, the decedent was accidentally shot by defendant Sean Canty, with the gun kept in the house by defendant Kevin Canty. Kevin Canty had told Sean when he was a child that the gun was not loaded when it was in the house, however Kevin apparently kept the gun hidden but loaded.
Sean and his friends found the gun one evening and thinking it was unloaded, pretended to shoot each other. Not a wise move. Since the gun was loaded, it discharged and killed the decedent. Plaintiff sought punitive damages against defendants. The trial court dismissed the claim and held that in order to sustain a punitive damages claim, the defendant must be guilty of “quasicriminal conduct, utterly reckless behavior, a malicious intent to injure plaintiff or gross, wanton or willful fraud.” The trial court found that because there were no criminal charges and the defendant believed the gun was hidden, the defendant’s conduct did not vault the hurdle necessary to support a punitive damages claim.
Thanks to Alison Weintraub for her contribution to this post. If you have any questions, please email Paul at .
