Procedural Slip Nearly Ices Personal Injury Action (NJ)

Procedural issues can be critical in litigation.  Even the simplest filing can sometimes have unexpected consequences.  In Boker v. Wal-Mart Stores, Inc., http://pdf/, the plaintiff’s case was nearly lost until salvaged by the Appellate Division due to a procedural hiccup.

The plaintiff, an employee of Wal-Mart, was injured at work in a fall on ice in the parking lot in February 2010.  His attorney wrote to Wal-Mart to request the name of the snow removal contractor later that year.  Wal-Mart failed to respond.  Counsel then filed a complaint just days before the statute of limitations would run naming Wal-Mart along with fictitious defendants.  Finally, Wal-Mart supplied the contractor’s name, and the plaintiff agreed to dismiss the case against his employer.

The slip came when the plaintiff allowed Wal-Mart’s attorney to file a stipulation of dismissal before he amended the complaint to substitute the contractor for one of the John Does.  When the plaintiff ultimately did so, the court rejected the amended complaint as the case was already closed.  The Court then denied plaintiff’s motion to reinstate the complaint and permit the filing.

Since the statute of limitations had run by this time, the plaintiff appealed.  The Appellate Division turned to the court rule that permits a plaintiff to dismiss any action prior to the filing of an answer.  It noted specifically that only a plaintiff may do so.   Thus, even though the plaintiff signed the stipulation, the court held that the filing was improper resulting in improvident dismissal of the action.

While the Appellate Division remanded with instructions for the case to be reinstated to permit the filing, it opened the door to the defense on a possible statute of limitations defense.

The moral of the story is when all else fails, read the rules!

For more information, contact Denise Fontana Ricci at

Assailants Escape Leaving Store Holding the Bag (PA)

In Joseph Martin v. Rite Aid of Pennsylvania and North Broad Development Company, the plaintiff, Martin, was robbed and assaulted by three males while trying to fill a prescription at a local Rite Aid in North Philadelphia.  Martin subsequently sued Rite Aid and the owner of the building where the Rite Aid was located alleging negligence.  He did not name his assailants as defendants. 

Both defendants filed preliminary objections citing, among other things, that Martin failed to join indispensable parties (the assailants).  The trial court in Philadelphia county agreed and dismissed the complaint with prejudice.  Martin appealed, and the Superior Court overruled the trial court’s dismissal.  The Court analyzed this issue under the rubric of Mechanisburg Area Sch. Dist. V. Kline, focusing specifically on whether the assailants had a right or interest relevant to Martin’s complaint.  The Court reasoned that Martin alleged negligence against the defendants for failing to maintain and operate a safe premises for business patrons.  The wrongful act contemplated by Martin’s complaint is that Rite Aid failed to take precautions to prevent Martin’s assault, not the assault itself.  Thus, the assailants have no cognizable right or interest in Martin’s claims against the defendants and Martin’s case can proceed against the defendants.

Special thanks to Remy Cahn for her contribution.

For more information, contact Denise Fontana Ricci at

Ever Changing Description of Fall Credibility Issue for Jury (NY)

In testimony, parties attempt to capture history.  What happens in but a fraction of a second can be a central and determinative issue in a lawsuit.  Did a fall occur due to ice or was there a broken step?  Such detail could mean the difference between a successful defense or case of liability.  When a video camera captures the action, there may be more definitive proof.  Otherwise, the jury is left to parse it out based upon credibility issues.

In Muhammad v. New York City Housing Authority, the plaintiff’s version of his fall changed over time.  In his initially filed notice of claim, he alleged that his accident was caused by either snow/ice accumulation or a broken step.  At his 50h Hearing, the plaintiff testified that he slipped on snow/ice and failed to mention the possibility of a broken step.  Finally, at his deposition, the plaintiff testified that the accident was caused solely by a broken step. 

Based upon the ever changing description of the fall, the Housing Authority moved for summary judgment, arguing that the plaintiff’s deposition testimony was a feigned attempt to create an issue of fact.  The lower court granted the motion, finding that the defendant was not negligent for the snow/ice condition which the plaintiff had originally identified as the cause of his accident. 

 The First Department partially reversed the lower court’s decision, finding that the lower court should not have disregarded the plaintiff’s prior allegation in his notice of claim that the broken step caused his accident.  Should a jury find that plaintiff fell on a broken step, the Housing Authority could be liable.  On the other hand, the appellate court upheld summary judgment on the issue of potential liability for a snow/ice condition.  In remanding the matter for trial, the appellate court held that the inconsistencies between the plaintiff’s 50h testimony and his deposition testimony raise issues of credibility that should be left for a trier of fact.   

 Special thanks to Georgia Stagias for her contribution.

For more information, contact Denise Fontana Ricci at

Assumption of the Risk Does Not Extend to Wet Bowling Shoes (NY)


The assumption of risk doctrine, which we have discussed in previous posts, bars a claim where the plaintiff is injured due to a risk that is inherent in or arises out of the nature of the activity the plaintiff is engaged in at the time of the accident. Typically, this applies to sporting activities. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of participation. A participant does not assume the risks that result in a dangerous condition over and above the usual dangers inherent in the activity at issue.

What qualifies as a dangerous condition over and above the usual dangers inherent in an activity is not easily ascertained. In Ortiz v. Ciolfar Bowl, Inc. , the First Department refused to apply the doctrine to bar a plaintiff’s claim.

There, the plaintiff slipped and fell at the defendant’s bowling alley as she started to throw her ball. Plaintiff claimed that her shoes had become wet since she had twice walked over a soaking wet carpet near the establishment’s entrance. Never mind that plaintiff chose to walk outside, twice, while it was raining, and returned a short time later to resume bowling.

The lower court denied the defendant’s motion and the First Department affirmed, finding a question of fact as to whether plaintiff knew her shows were went when she approached the lane and the heightened risk of bowling with wet shoes.

Special thanks to Gabe Darwick for his contribution.

For more information, contact Denise Fontana Ricci at

Secretly Videotaped IME’s – Unethical Plaintiff Practice or a New Trend?

Earlier this year, a widely used New York City defense orthopedist was sanctioned for perjuring the length of his examination of a particular plaintiff.  See transcript.  The perjury was discovered (and proven) because the plaintiff had secretly videotaped the IME, and demonstrated that the purported 20 minute IME had taken only 1 minute, 56 seconds.

Recently, members of both the plaintiff’s and defense bar have offered their opinions, addressing the legal and ethical issues involved in the secret videotaping of IME’s.   CPLR Section 3121 allows defendants to notice plaintiffs for IME’s, but requires “special circumstances” (i.e., comatose plaintiff unable to testify about the exam) to order the videotaping of an IME.  Absent such special circumstances, however, noticed recording of IME’s is prohibited. CPLR 3121 does not reference the secretive, unnoticed recording of an IME by a plaintiff.  To the plaintiff’s bar, secretive IME videotaping operates as a type of “reverse-surveillance,” in which the plaintiff films the defense witness without his or her knowledge.  The question, then, is whether the secret videotaping of an IME is (and should be) prohibited. 

In 2003, the New York Bar Association offered its formal opinion ( that the secret videotaping of a conversation by an attorney, although legal, is unethical.  The opinion noted that “no societal good is furthered by allowing attorneys to engage in a routine practice of secretly recording their conversations with others, and there is considerable potential for societal harm.”

 The argument could be made (and we suspect, will be made by the plaintiff’s bar) that secret IME recording achieves the “societal good” by exposing cursory IME’s, which in turn, would result in more thorough, accurate exams. To that end, secretive IME recording could become “the routine practice of every single IME in every single personal injury action,” especially if a given plaintiff honestly believes he is preventing potential perjury by recording the IME.   No Court has specifically ruled on this yet, but IME physicians would be well advised to assume they are being recorded by copycat plaintiffs in the near future, looking to assist their cases.   

Special thanks to Brian Gibbons for his contribution.

For more information, contact Denise Fontana Ricci at


Court Defines Excess Carrier’s Duty to Defend (PA)

Following in the footsteps of Ali v. Federal Insurance Company, the Pennsylvania Superior Court recently borrowed the Second Circuit’s approach to excess coverage in holding that a carrier’s duty to defend is triggered only when an “underlying insurer” has exhausted its policy by satisfying a judgment or settlement.

In the case of Lexington Insurance Company v. Charter Oak Fire Insurance, the City of Philadelphia contracted with CMX, Inc. in 2005 to perform engineering services on a flood control project in Fairmount Park.  In turn, the City and CMX outsourced construction work on the project to the JPC-Jay Dee joint venture that, as a condition of the subcontract, was required to maintain CMX as an additional insured on its various liability policies.  By all accounts, JPC-Jay Dee complied with this condition, procuring commercial general liability and excess insurance through Charter Oak Fire Insurance and North River Insurance Company.  In respect of North River’s excess coverage, the policy provided that the duty to defend would apply when “the applicable limits of ‘Underlying Insurance’ and ‘Other Insurance’ have been exhausted by payment of judgments or settlements.”

Shortly after construction commenced in 2007, a bicyclist was struck and killed by a motorist at the site of the project.  In the survivor action that followed, the bicyclist’s wife named the City, CMX, and JPC-Jay Dee as defendants for numerous acts or omissions of negligence.  With the exception of CMX, the remaining parties ultimately settled the claim out of court in 2009 for approximately $10 million.  Later, CMX independently settled the plaintiff’s claims for roughly $2 million, with payment tendered by its own insurer, Lexington Insurance Company.

Given that CMX had unsuccessfully tendered its defense to North River prior to reaching settlement with the plaintiff, Lexington eventually commenced its own lawsuit against North River claiming that it violated its duty to defend and indemnify CMX as an additional insured under the policy.  North River, in turn, responded to the suit by arguing that the duty to defend had not been triggered because CMX’s tender preceded Charter Oak’s actual payment of settlement funds.  The trial court sided with North River and granted summary judgment in its favor.

On appeal to the Superior Court, Lexington argued that the trial court’s interpretation of North River’s exhaustion clause was impermissibly strict insofar as it vitiated the insurer’s duty to defend simply because Charter Oak had yet to disburse the policy limits at the time of tender.  In considering this argument, however, the Superior Court noted that Pennsylvania law had traditionally failed to address the relationship between exhaustion clauses and an excess carrier’s duty to defend.  Rather, the Superior Court turned directly to the Second Circuit’s recent decision in Ali and adopted its reasoning that “an excess insurer does have a relevant interest in actual payment of a settlement by the primary insurer” because it dissuades insureds from agreeing to inflated settlements.  As a result, the Court gave effect to the clear and unambiguous language in North River’s exhaustion clause and affirmed summary judgment on the basis that CMX had prematurely tendered its defense.

In addition to further defining the excess carrier’s duty to defend in Pennsylvania, the Superior Court’s decision in Lexington serves as a reminder that clear policy language is paramount to successful coverage litigation.

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

Court Curtails Use of Incompetent’s Settlement (NY)

Most parents who serve as court-appointed guardians for their disabled child would know what is in their child’s best interest and would use settlement proceeds to advance those interests.  But that does not mean that courts will abdicate their oversight responsibilities.

In the Matter of the Application of Geoffrey M. and Jordanna M. involves Sigal M., a girl who suffers from cerebral palsy, quadriparesis, microcephaly, and other developmental issues.  Previously, she had been adjudicated incapacitated under Mental Hygiene Law 81.02(b), and had received a structured settlement.  The amount in the estate at the time of this decision was approximately $8 million.  Sigal’s parents, who are also her co-guardians, sought to use a portion of those funds to pay $33,349 on the bat mitzvah party for her and 237 guests, and $60,000 on a trip to Israel for Sigal, her family, and an aide.

The Nassau District Court rejected the request.  In reaching its decision, the court considered two approaches.  The first, followed by the First and Second Departments, limits withdrawals to necessities and education that cannot otherwise be provided by the parents.  The second, articulated by Court of Claims Judge David Weinstein focuses on the best interests of the child.

Noting that Article 81 is silent with respect to extraordinary expenses such family holidays and culturally significant milestones, the court focused on the necessity of preserving the estate for the child.  For that reason, and because Sigal’s parents were people of means, the court denied the parents’ request to use the money to pay for the bat mitzvah and limited the amount of funds to be used on the vacation.  Expenses for the daughter, her aide, and her mother were appropriate, but the court refused to allow expenses for the parents’ hotel room, and expenses related to Sigal’s siblings.

Most parents believe they know what is best for their children, but courts have oversight responsibilities.  When a guardian spends a disabled person’s money, courts will scrutinize whether the expenditures are for the disabled person or their family as a whole.  Based on this decision, even when a disabled person has a major life event on the horizon, their guardians would be well advised to keep estate expenditures as ordinary as possible.

Thanks to Mike Gauvin for this post.  If you have any questions, please email Paul at

Defense Jury Overruled (NY)

In DiDonna v. Houck, the Second Department granted plaintiff’s motion to set aside a verdict that was contrary to the weight of the evidence.  The plaintiff was struck while crossing the street in a crosswalk by a vehicle driven by the defendant.  After trial, the jury found that the plaintiff was 60% at fault while the defendants were 40% at fault for the accident.

The court found that the plaintiff began crossing the street on a “walk” signal and at all times stayed within the crosswalk.  There was no evidence presented indicating otherwise.  Pursuant to Vehicle and Traffic Law §1112, a pedestrian crossing a roadway during a steady walk signal must be given the right of way.  If a pedestrian partially completes his or her crossing on the walk signal, that pedestrian may proceed on a flashing or steady “don’t walk” signal.

Applying the law, the court could not find a fair interpretation of the evidence that was consistent with the jury’s findings.  As such, the court held that the verdict was contrary to the weight of the evidence, quite a high standard to meet.  The court set aside the verdict and granted a new trial on liability, unless the parties stipulated to a finding that the plaintiff was 5% at fault and the defendants were 95% at fault for the accident.

The verdict is not all that surprising for a case tried in Westchester County, a defendant-friendly venue.  However, the court’s decision is not as predictable.  The court essentially made its own finding on liability, conditioning it with the threat of a new trial.  As seen in this case, a favorable jury verdict, or a favorable venue, will not automatically help a party when the evidence presented does not discharge a party’s liability under the law. However, the defendant will get the benefit of that same jury deciding the damages issues in a bifurcated trial.

Thanks to Anne Mulcahy for her contribution to this post.  If you have any questions, please email Paul at

Dodging the Spoliaton Bullet (NY)

In Shields v. First Avenue Builders, LLC, a New York County trial court refused to strike third-party defendant’s pleading after the party accidentally destroyed the evidence that it was ordered to preserve. In Shields, plaintiff alleged that he was injured while cleaning a concrete pump that was manufactured by defendant/third-party plaintiff Worthington’s predecessor in liability.   Third-party defendant MC & O was ordered to preserve the pump for a second inspection after plaintiff amended his bill of particulars to include additional allegations regarding the manufacture of the pump. MC &O, however, inexplicably destroyed the pump before the second inspection took place.

Several parties moved for a stricken pleading and sanctions against MC&O without explaining about how they would specifically be prejudiced by the pump’s destruction. In addition, prior to this motion’s decision, Worthington was granted summary judgment and dismissed from the case. The court, therefore, held that Worthington’s motion was rendered moot given its dismissal from the case. In addition, it held that the other party did not submit any evidence proving that the pump’s destruction was prejudicial to its case. Therefore, rather than striking the pleading, the court ordered that an adverse inference charge at trial as the appropriate sanction.

The lesson learned is that defendants must to take great care in preserving any property involved in an accident when court ordered to do so. A clear channel of communication must be established to ensure that property subject to a court order is preserved.  That said, defendants can have some faith the court will not just strike pleadings and order sanctions for any minor violation. Rather, the moving party must show that such spoliation was actually prejudicial.

Thanks to Alison Weintraub for the post.  If you have any questions, please contact Paul at

“Stalker” Imperils Jury Verdict (NY)

A favorable defense verdict is a precious item. It is secured by thorough preparation, a persuasive presentation, favorable facts, and a little luck. The last thing a party wants to see is the verdict overturned because of some unauthorized contact with the jury.

Bohn v. Forba took fifteen days to try. The jury returned a unanimous defense verdict and the trial judge, as was her custom, privately thanked them for their service. When she asked if they had any questions, the jurors inquired about the person “stalking” them throughout the trial. The jurors further described him as “creepy” and “seedy” and related that he seemed to follow them in the courthouse elevators, lobby and local restaurants. Some expressed concern that the “stalker” was videotaping them. After one juror observed this person talking to defense counsel and his two clients, the juror concluded that he must be associated with the defense team.

The mystery man was, in fact, a partner “in a New York City law firm” who was monitoring the case for the insurer of several defendants and reporting back to his client on issues involving insurance coverage. He later denied any attempts to speak with the jurors and explained that his proximity to them in the courthouse and surrounding restaurants was merely coincidental.

After speaking with one of the jurors without the attorneys but on the record, and taking sworn testimony from the coverage attorney in the presence of all counsel, the court concluded that coverage counsel “made improper contact with the jury.” The trial judge believed that he “continuously followed and monitored the jurors when they went to lunch, when they took smoking breaks and when they rode the elevators.” Sensing that their favorable jury verdict was in peril, the defense attorneys argued that the court’s ex parte interview of the jury was improper and that if anyone was harmed by the perception of stalking by a suspected defense representative, it was the defendants.

On this critical issue, the court held that prejudice would be presumed. It further found that the jurors were likely influenced by the alleged improper conduct, speculating that they may have felt intimidated and compelled to render a defense verdict.

In matters involving the jury, the court’s message is clear: keep a wide berth of the jury so that even the appearance of improper contact can never be raised. We suspect that the court’s approach of questioning the jurors outside the presence of trial counsel will become a major issue on appeal since defense counsel was never given the opportunity to explore what prejudice, if any, resulted from the perceived conduct of coverage counsel.

If you have any questions or comments about this post, please email Paul at