No Cover For Landlord in Steamy Radiator Case (NY)

When a landlord tries to fulfill its duty to maintain its premises in a reasonably safe condition, it is not enough to simply rely on what a court may have said a few years earlier.  In Nina W. v. NDI King Ltd. P’ship, the plaintiff was a five year old girl who suffers from cerebral palsy and intellectual disability, condition formerly called mental retardation.  On her behalf, her mother filed suit in the Bronx Supreme Court, alleging that while the girl was sleeping in a bottom bunk bed, she suffered severe burns after her face and hands came into prolonged contact with an uncovered baseboard radiator.

The defendant landlord moved for summary judgment, relying on Rivera v. Nelson Realty, a 2006 Court of Appeals case which held that “the landlord of a home where children live does not have a common-law or other duty to provide or install radiator covers,” even in situations where the tenant requested one.  The Bronx Supreme Court granted the landlords motion, in reliance on Rivera; however, the First Department reversed.

The Court noted that, unlike the freestanding radiator in Rivera, the radiator in Nina W. was a baseboard heater which “came with covers” that were removed by the landlord because they were rusty, and never replaced.   In addition, the plaintiff in Nina W. was especially diligent in that she kept in contact with the New York City Department of Housing Preservation, which led to violations being issued.

As Of Interest has noted before, courts sometimes hand down surprising victories for property owners and other defendants.  Sometimes those victories, like the defendant’s in Rivera, appear to be the proverbial “slam dunk” in hindsight.  But Nina W. serves as a useful reminder that no two cases are alike, and no matter how sweeping a prior decision appears on the surface, it is no safe harbor for property owners to be complacent.  If anything in a tenant’s apartment, especially something that could be dangerous, does not look like it is supposed to, a landlord would be well advised to spend the penny on a repair to avoid spending a pound (and a lot more than that) in litigation.

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

“Borrowed Employee” Status Remains Question of Fact in Pennsylvania

Recently, the Pennsylvania Superior Court reiterated that the employment status of a “loaned” laborer is a question of fact with respect to the applicability of the workers compensation bar.

In the case of Shamis v. Moon, the plaintiff was the direct employee of a general contractor charged with overseeing the expansion of the Pennsylvania Convention Center in Philadelphia.  More specifically, the plaintiff alleged in his complaint that he was “loaned” to a demolition subcontractor working on the project, and sustained severe injuries when an employee of the same ran him over with a dump truck.  In light of his injuries, the plaintiff filed a workers’ compensation claim against the general contractor, and later sued the subcontractor and its employee in the Pennsylvania Court of Common Pleas.

In responding to the plaintiff’s allegations, the subcontractor eventually moved for summary judgment and asserted that it was also the plaintiff’s employer for the purposes of the workers’ compensation bar under the “borrowed employee” doctrine.  To this end, the subcontractor presented evidence from the record indicating that it, not the general contractor, actually supervised the expansion and directed the plaintiff in his duties.  Perhaps surprisingly, the Philadelphia trial court agreed and granted summary judgment on the basis of the workers’ compensation bar.

On appeal to the Pennsylvania Superior Court, the plaintiff argued that the trial court erred as a matter of law when it applied the “borrowed employee” doctrine.  Specifically, the plaintiff argued that Pennsylvania law recognizes the doctrine only when there is sufficient evidence that the employee “passed under the [putative] employer’s right of control with regard to the work to be done and the manner performing it.”  According to the plaintiff, however, the record in Shamis was conflicted in respect of the general contractor’s right of control vis-à-vis the defendant subcontractor.  In particular, the plaintiff noted to the Superior Court that although he took direction from the subcontractor, the general contractor maintained a contractual right and obligation of supervision that called into question his employment status for purposes of the workers’ compensation bar.  In ultimately endorsing the plaintiff’s position, the Superior Court agreed that questions regarding “borrowed employees” are intrinsically fact sensitive and rely heavily on factors that should be considered by a jury.  As a result, the Superior Court reversed and remanded the matter to the court below for further discovery and trial.

Shamis is a reminder that while the “borrowed employee” doctrine may serve as a viable bar to workplace injury claims in Pennsylvania, the defense requires a significant and detailed factual basis in order to succeed.

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

Plaintiff Fails to Slip by Black Ice Case (NY)

In Andrew Cuillo v. Fairfield Property Services, L.P., the Appellate Division affirmed the general rule regarding “black ice” in premises liability cases. When plaintiff testified that he did not see any snow or ice on the ground before the accident even though he looked down, the trial court granted (and the Second Department affirmed) defendant’s summary judgment motion. The Appellate Division reiterated that the property owner has a duty to clear snow and ice only when it created the condition or had actual or constructive notice of the condition. In addition, the Second Department affirmed the trial court’s decision not to consider the affidavits of plaintiff’s experts who had not been previously identified.

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

No Cause of Action for Medical Monitoring in the Absence of Physical Injury (NY)

The New York Court of Appeals announced a significant ruling in the context of toxic tort cases.  The Empire State’s courts have been vexed about whether to recognize an independent cause of action for medical monitoring in the absence of physical injury, usually to a class of plaintiffs. Put another way, assuming liability on the part of a defendant, is a plaintiff’s fear of future injury sufficient to require defendant to pay for a medical monitoring program to assist in the detection of an injury that may never not come to pass?

In Caronia v. Philip Morris USA, the Court of Appeals declined to recognize a cause of action for medical monitoring based solely on the threat of future injury.  Balancing public policy considerations including the burden that would be imposed on the courts, Caronia reaffirmed the requirement that a plaintiff must prove a physical injury before he or she may recover consequential damages for medical monitoring. The legislative branch was believed to be in a better position to study the issue and decide whether to expand the reach of New York’s tort law.

New York has spoken and the duty of a defendant to fund medical monitoring in the absence of a physical injury has been soundly rejected.  We predict that Caronia will have a significant impact on tempering toxic tort class actions for those plaintiffs who have not manifested any present physical injuries.

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

WC Determination Not Binding in Underlying B.I. Action (NY)

In Aqui v. Seven Thirty One Ltd. Partnership, the Court of Appeals affirmed the First Department’s determination that the defendant was not entitled to collateral estoppel on the issue of causally-related disability due to a Workers’ Compensation Administrative Hearing determination that discontinued plaintiff’s benefits.

On December 23, 2003, plaintiff was injured during the course of his employment as a food delivery person. Plaintiff received Workers’ Compensation benefits for injuries to his head, neck, back and post-traumatic stress disorder and depression.  He commenced a third party, personal injury action in 2004.

In December 2005, the workers compensation carrier moved to discontinue plaintiff’s Workers’ Compensation benefits.  The parties proceeded to a hearing before an Administrative Law Judge.  Each side introduced expert medical testimony and was subject to cross examination.  The ALJ found plaintiff had “no further treatment causally-related” to his accident and discontinued his benefits as of January 24, 2006.  Defendant in the plaintiff’s underlying personal injury action immediately moved for an order estopping plaintiff from re-litigating the issue of causally-related injuries after January 24, 2006.  The Supreme Court granted the order, the First Department reversed, and the Court of Appeals affirmed the Appellate Division.

The Court of Appeals held that the defendant was not entitled to collateral estoppel on the issue of causally-related injuries because the issue being litigated was not identical to the determination of the ALJ.  The Court explained that Workers’ Compensation benefits are meant to provide all injured employees with some compensation due to an inability to perform duties of employment.  A personal injury action, on the other hand, is broader in scope.  It is intended to make an injured party whole, by assessing the impact of an injury over the course of a plaintiff’s lifetime.  Therefore, the Court of Appeals held that the issues are not identical and collateral estoppel cannot apply.  The Court made sure to note that this decision was not a general rule about Administrative proceedings and collateral estoppel, but only applicable where there is no identity of issues in the two proceedings.

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

Court Finds No Defense Duty Due to Damage Claim (NY)

When evaluating whether a lawsuit against an insured triggers a duty to defend, insurers often focus on the complaint’s factual allegations of liability.  Recently, in Certain Underwriters at Lloyd’s London Subscribing to Policy Number SYN-1000263 v. Lacher & Lovell-Taylor, it was determined that the damages alleged in the underlying action brought the claim outside of the scope of coverage of the professional liability policy issued by the plaintiffs.

The Appellate Division, First Department upheld the trial court’s award of summary judgment declaring that the insurer was not obligated to defend or indemnify the defendants in the underlying estate proceeding, and also granted summary judgment on its cause of action for reimbursement of its defense costs.

The complaint in the underlying action claimed that the defendants overbilled their client in the underlying estate proceeding, but they never alleged facts which would have shown that if not for their negligence, they would have obtained a better result.  The Court also focused on the fact that a damage claim for the return of legal fees is not a claim for “damages” in a legal malpractice action as defined by the professional liability policy the insurers issued.

Based on the court’s determination that the insurer did not owe an obligation to defend and indemnify, it is important that insurers evaluate not only the facts of the event which give rise to potential liability for a claim, but also the damages sought, in order to determine whether there is an obligation to provide coverage.

Thanks to Jorgelina Foglietta for her contribution to this post.

When is a Spectator a Participant? (PA)

On March 31, 2007, Samuel Ketcham and Steven W. Guthrie, Jr. went to the Mercer Raceway Park and because they wanted to get close to the action, they purchased “pit passes” to watch the race.  Unfortunately, during the race a car driven by William Michael Lanigan struck the fence along the racetrack, seriously injuring Ketchum and killing Guthrie.

Lanigan and the Mercer Raceway Park were then sued, and a claim was submitted to the racetrack’s insurer for coverage.   An endorsement in the policy provided that there was no coverage for bodily injury to any “participant” against another participant while participating in a racing program.  The definition of participant in the policy included anyone with a guest pit pass.   The insurer thus denied coverage, leading to a breach of contract and bad faith action against the raceway’s insurer.

Although one would not typically consider a spectator to be a race participant, the court agreed that these parties fell under the policy’s broad definition of the term.  Since the insurer demonstrated the existence of these facts, and that it had learned them before deciding to deny coverage to the plaintiff, the court granted the insurer’s motion for summary judgment.

Thanks to Thalia Staikos for her contribution to this post.  If you would like more information please write to Mike Bono.

Insurance Adjuster’s Estimate Supports Damage Award Against Contractor (NJ)

We frequently see articles and cases about conflicts between insurers and homeowners due to storm damage.  But recently, the alignment between the insurer and policyholder lead to a damage award against a contractor.

In Peltier v. Barbera plaintiff had the defendant construction contractor provide an estimate for necessary storm repairs for her home.  Defendant suggested that plaintiff file a claim with her homeowner’s insurance carrier, which plaintiff did, and the carrier provided a detailed breakdown of damages and costs of repair as determined by an adjuster retained by the carrier.

The contract between the plaintiff and the defendant specifically and expressly relied upon the cost breakdown provided by the carrier.  Despite receiving full payment, the defendant only completed part of the work, leading to a lawsuit by the homeowner.

During the lower court bench trial, the judge found that the defendant had indeed breached the contract with the plaintiff by failing to complete the agreed upon work.  However, the judge also determined that the plaintiff failed to prove damages, primarily because she relied exclusively upon the estimate prepared by the insurance company and its adjuster, rather than expert testimony to substantiate her claim for damages.

Relying on long-standing principles of fairness and equity, the Appellate Division determined that where a breach of contract and subsequent damage occurred with certainty (as was the case here), uncertainty about the amount of damages should not serve as a bar to making a party whole.  Finding that the insurance estimate and cost breakdown was sufficient evidence to establish the scope and cost of the necessary work, the appellate court reversed the lower court decision and directed entry of an award of damages against the contractor for the cost of work he failed to perform.

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

Barking Up The Wrong Tree: Court Grants Owner Summary Judgment For Dog’s Accident

Typically, lawsuits involving dogs arise out of dog bites.  But a more unusual scenario arose in Buicko v Neto, where a dog running loose in the street caused an accident and the injured party sought to have the dog’s owner held liable.

The defendants’ installed an invisible fence along the boundary of their property intended to allow their dog, Dudley, free to explore.  The dog was fitted with a collar that provided a small electric shock when the dog ventured too closely to the underground “fence.”

One day, plaintiff rode her bicycle past defendants’ home and noticed Dudley barking and zigzagging along the front boundary of the property.  Apparently, the invisible fence didn’t provide much of a deterrent, as plaintiff alleged Dudley bolted from defendants’ yard directly in the path of her bicycle causing her to inadvertently strike the dog and fall.

The trial court awarded the homeowner’s summary judgment, and the Appellate Division, Third Department, affirmed the dismissal finding that plaintiff submitted insufficient evidence to demonstrate that the defendants were liable.  Similar to a dog bite case, the found that the owners needed to be on notice of a propensity for similar conduct.  While recognizing that the propensity could include “a dog’s habit of chasing vehicles or otherwise interfering with traffic” and thus endangering people’s safety, the court found that there was no evidence that Dudley had a history of chasing bicycles or interfering with traffic.  A dog’s propensity to bark at traffic and run around a yard was deemed insufficient to raise a question of fact regarding the homeowner’s notice for the dog’s conduct here.

Thanks to Steve Kaye for his contribution to this post.