Author Archives: Paul F. Clark

You Can Keep On Truckin’ But You Don’t Necessary Get Coverage (NJ)

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The omnibus “use” clause in a standard commercial auto policy can be tricky.  There is no easy definition that explains how expansive the term “use” should  be read.

In Burlington Coat Factory of New Jersey, LLC v. Jay Dee Trucking et al., the New Jersey Appellate Division, in an unpublished opinion, dismissed a retailer’s complaint seeking insurance coverage from defendant trucker and its commercial auto insurer. The retailer was sued a worker was injured at the retailer’s loading dock, after defendant trucker had parked at the loading dock.  Instead of using a dock plate that the retailer had previously misplaced, another employee used an unsecured piece of plywood to fill the gap between the truck and the dock.  Plaintiff claimed that he was injured after the board slid after he stepped on it.

The retailer sought insurance coverage under the “loading and unloading” doctrine, which holds that such operation is part of the “use” of the vehicle. However, the lower court declined to extend coverage, noting that the injured plaintiff plead the action as a premises liability case, rendering the loading and unloading doctrine inapplicable.  The Appellate Division affirmed, stating that the negligent maintenance of the dock (including the misplacement of the dock plate) caused the accident, rather than a negligent use of the truck that would trigger insurance coverage.  As such, the loading and unloading doctrine was deemed inapplicable and the retailer plaintiff denied coverage under the trucker’s policy.

Just because a truck was at a loading dock when the accident occurred does not automatically mean the loading and unloading doctrine is applicable, and insurers should pay close attention to the specific facts and events when evaluating truck claims in New Jersey.

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

Trivial Defect Supports Dismissal (NY)

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When a noticeable defect causes an injury, the trial court will often deny a motion for summary judgment leaving the issue of triviality of that defect to the jury.  However, the Second Department recently found a defect was too minor oo support a claim of negligence.  In Zelichenko v. 301 Oriental Blvd.,   the plaintiff claimed he was injured while descending stairs in an apartment building owned by defendant.  He claimed he fell on a 3 inch wide and ½ inch deep chip in the second to last step form the bottom.

Defendant moved for summary judgment arguing that the chip was a non-actionable trivial defect.  The trial court denied the motion finding an issue of fact as to whether the chip in the stairs was trivial.  The Second Department reversed holding that the alleged defect was trivial as it was only 3 inches wide, ½ inch deep and not on the walking surface of the stair.  The court held that there is no minimal dimension test or per se rule that defects must be a minimum height or depth to be actionable.  Here, the defect was not a trap or a nuisance and defendant met its burden establishing such through plaintiff’s deposition testimony, photographs and an expert affidavit.

The lower court took the cautious route, denying defendant’s motion for summary judgment.  But the Appellate Division reversed finding that the defect was trivial and not actionable.  Therefore, there were no issues of fact for a jury to decide and the court dismissed plaintiff’s complaint.

It is often difficult to obtain summary judgment on the basis that a defect is too trivial.  However, a well-supported motion with photographs and an expert affidavit can overcome the judicial reluctance to grant summary judgment in some cases.

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

 

Safety First: Colorful Language Dooms Defense (NY)

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The never ending ways New York’s Labor Law entangles owners and general contractor are legendary. In DeRose v. Bloomingdale’s Inc., the Appellate Division decided an appeal that included a supervisor’s colorful language ordering plaintiff to complete demolition work ASAP without the proper and adequate safety device. The supervisor’s orders to perform demolition work ASAP without the proper safety device led to the finding of absolute liability under the Labor Law.

In DeRose, plaintiff wanted to stand on an available Baker scaffold while dismantling the wall. However, doing so would have necessitated walking with scaffold through Bloomingdale’s during business hours. While not disputing plaintiff’s assertions that a Baker scaffold would have been the adequate safety device, his supervisor mandated, in much more colorful language than will be used here, that plaintiff not roll the scaffold through the store while customers were present and should instead use the ladders already present in the section being demolished. Plaintiff ultimately used the one ladder available to perform his work, a “rickety” old, wooden A-frame ladder. Needless to say, plaintiff ended up falling and injuring himself.

Labor Law 240[1] requires building owners and contractors to provide scaffolding, ladders, and other devices, to provide proper protection to workers. Defendant’s asserted defense that plaintiff was the sole proximate cause of his injury because he refused to ignore either the supervisor’s orders to not bring the Baker scaffold or the supervisor’s orders that this project be worked on ASAP failed as the Labor Law protects workers’ safety and the statute does not ask laborers to put their jobs on the line by disobeying a superior’s order.

To help avoid the absolute liability of Labor Law like the defendants in DeRose, it would be beneficial for general contractors and building owners to instruct and continually remind the site supervisor(s) that safety must come first. And the choice of language – colorful or not – is yours.

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

Public School District Found Liable For Private School Student Bullying (NY)

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School seems more complicated than when I grew up.  We now have stalking, harassment, cyber-bullying, and myriad of other objectionable conduct.  Technology may be the engine of progress but, in an educational setting, it can also be used to harass, demean, and bully those students perceived to be weak or different.

To curb this objectionable conduct, New York enacted the Dignity for All Students Act (DASA) effective July 1, 2012.  This statute declares the policy of New York to “afford all students in public schools an environment free of discrimination and harassment.”

The statute is clear that it applies to public schools and their students.  Does the statute reach conduct targeting a former public school student who transferred to a private school because of past bullying behavior at the public school?  In other word, does the statute impose a duty on a public school district where the target of the misbehavior is now a student in a private school?

“Yes,” according to Simon v. Bellmore-Merrick Central High School District, et al.  In Simon, the minor plaintiff was allegedly bullied earlier in her academic career at the defendant’s school district.  She was transferred to another school within the district as part of the district’s earlier response and later transferred to a private school.    A few years later, two students of the district allegedly circulated a lewd video involving a female student and falsely represented that the female was the minor plaintiff.   The plaintiffs, both parents and minor daughter, alleged that the school district’s response was inadequate and such deficiencies contributed to the daughter’s distress.

In a case of first impression, the motion court found that the school district owed plaintiff a duty of care under DASA to prevent the subject harassment and cyber-bullying.  In the court’s view, the district’s interpretation of DASA – that it owed no duty to a private school student – would permit the district to “turn a blind eye” to malevolence perpetrated by its students where the target was private school student.  In sum, the court found that, under DASA, the district had a “duty to regulate” the conduct allegedly perpetrated by its students.  Of note, the court also held that the district had no common law duty of care to the plaintiff and dismissed plaintiffs’ negligence claims.

If you have any questions, please email Paul at .

Lack of Automated Sprinkler System Washes Away Bad Faith Claim (PA)

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The Pennsylvania Superior Court upheld the lower court’s determination that Travelers Insurance Company properly denied insurance coverage following a building’s destruction in a fire, and did not act in bad faith by waiting six months before denying the fire loss claim.

In Yera, the owner of an apartment building initiated a lawsuit when its insurance company, Travelers, denied coverage for the apartment building’s destruction in a fire.  After Yera provided notice of the loss, Travelers denied coverage because the building did not have an automatic sprinkler system installed, as required by a policy endorsement, when the fire occurred.  The endorsement specifically required Yera to “maintain” listed protective devices or services, including an automatic sprinkler system.

The Philadelphia trial court agreed with Travelers, determining that the absence of an automatic sprinkler system was a violation of a condition of the Travelers’ policy.  Yera promptly appealed the trial court’s holding, claiming that the protective safeguard endorsement clause in the policy was ambiguous and thus impossible to enforce.  Specifically, Yera argued that endorsement’s use of the word “maintain” was ambiguous due to its dual meanings of “to keep in existence” and “to keep in a condition of good repair.”  As the term was not specifically defined in the policy, Yera claimed that Travelers’ automatic sprinkler requirements were unclear, making the provision unenforceable.  Further, Yera argued that Travelers acted in bad faith when the company waited six months after the fire before denying Yera’s claim.

Nevertheless, the Pennsylvania Superior Court upheld Travelers’ denial of coverage.  The Superior Court determined that the protective safeguard endorsement clause was unambiguous in the context of the policy, clearly requiring Yera to have a functioning automatic sprinkler system in place in order to recover.  Moreover, the Court noted that by its own admission, Yera failed to meet either proposed definition of maintaining an automatic sprinkler system.  Whether the provision required simply having an automatic sprinkler system in place, or having one in place that was also fully operational, Yera could not satisfy either interpretation of the requirement for coverage.

Additionally, the Court denied Yera’s claim that Travelers acted in bad faith by waiting to deny its claim until six months after the fire.  As Traveler was justified in denying the claim, the Superior Court held that any supposed delay caused by the company’s investigation of the claim was irrelevant.  As Travelers did not owe Yera any coverage, there cannot be an improper delay in payment of insurance proceeds, so the requirements for bad faith were not met.

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

Specificity Required In Summary Judgment Affidavit (NY)

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In Lawrence Jahn v. SH Entertainment, LLC, the court denied summary judgment to the defendant in a slip and fall case because the supporting affidavit did not establish that the defendant lacked constructive notice. The affidavit stated that the defendant and his staff performed walk-throughs during the event, which was held in a large open space, and  no slippery substances or dangerous conditions were found on the floor. The court noted that the affidavit failed to mention how often the floor was inspected or that defendant’s employees inspected the accident location prior to the accident. Thus, the First Department found that defendant not establish that it lacked constructive notice of the condition and affirmed denial of defendant’s summary judgment motion.

So keep in mind, affidavits concerning notice must be very specific to successful support a summary judgment motion.

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

 

NJ Federal Court Thrusts Surveillance Evidence Back into the Shadows

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As we have previously reported, even the best surveillance evidence of the plaintiff is only as good as its potential to contradict damages or impeach credibility. With that value in mind, the majority of jurisdictions hold that post-accident surveillance is only discoverable after the defendant has had the opportunity to depose the plaintiff and memorialize his independent account of both the incident and damages. However, at least one federal magistrate judge in New Jersey recently indulged a markedly different interpretation of the discovery rules, and held that post-accident surveillance must be disclosed immediately.

In the case of Gardner v. Norfolk Southern Corporation, the plaintiffs filed suit after their motor vehicle struck a deteriorated railroad crossing operated by Norfolk Southern. Shortly after joinder of issue, plaintiffs served Norfolk Southern with discovery demand seeking, among other things, “sound, photographic, motion picture film, personal sight or any other type of surveillance” evidence. Unsurprisingly, Norfolk Southern objected and later filed a motion for a protective order in the United States District Court for the District of New Jersey seeking staggered disclosure of surveillance it had conducted.

In analyzing the discovery issues, Magistrate Judge Ann Marie Donio traced precedent from around the nation revealing an overwhelming majority of federal courts that have delayed the production of post-accident surveillance until after the plaintiff’s deposition. In fact, in discussing the lead case in this respect, Snead v. American Exports, Inc., Judge Donio recognized that “the defense must be given an opportunity to depose the plaintiff fully” so as to preserve effective impeachment. Notwithstanding this majority, however, Judge Donio’s analysis pivoted to a consideration of the exception to the general rule as found in the case of Babyage.com, Inc. v. Toys R Us, Inc., where the Eastern District of Pennsylvania explained that recordings of the incident, transaction or occurrence giving rise to the suit must be disclosed immediately as “substantive” evidence.

Clinging to the phrase “substantive evidence”, Judge Donio reasoned that post-accident surveillance of the plaintiff may serve to substantively prove or disprove the extent of claimed injuries, and is therefore beyond the pale of the Snead rule. Specifically, Judge Donio tenuously interpreted Norfolk Southern’s surveillance as evidence “giving rise to the plaintiffs’ claims” rather than merely bearing the potential to discredit them or, in her own opinion, to intentionally manufacture inconsistencies in the litigation. Consequently, Judge Donio departed from Snead and ordered Norfolk Southern to disclose all of its surveillance well in advance of the plaintiffs’ depositions.

There is little doubt that Judge Donio’s ruling in Gardner stands in stark contrast to the majority of federal and state case law that considers the “substantive evidence” exception to reside only in clandestine recordings of the incident itself. As a matter of fact, New Jersey state case law has recognized as far back as 1976 that sub rosa surveillance need only be produced after plaintiff has been deposed. Nevertheless, absent clear precedent from the lower federal courts or the Third Circuit, Gardner appears to be one of the few cases in New Jersey federal court to confront the issue of surveillance discovery, and by extension, may serve to severely undermine its benefits in personal injury cases.

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

Swim With Peace of Mind

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With the weather finally warming up in the northeast, summer, along with its mainstays of barbeques, baseball and swimming, have increasingly become topics of conversation. With each of these American traditions comes the potential for liability. The Second Department recently dealt with the defense of assumption of risk in swimming.

In Rueckert v. Cohen, 2014 NY Slip Op 02918 (2d Dept. 2014), the plaintiff was conducting a swimming lesson when another swimmer’s foot unintentionally struck the back of her right knee while turning within the same lane. The plaintiff brought suit against this other swimmer, claiming personal injuries allegedly sustained as a result of negligence as well as assault and battery.

The Second Department found that the plaintiff voluntarily entered the pool, thereby assuming the risk and consenting to the commonly appreciated risks inherent in swimming. The Court granted the defendant summary judgment, holding that incidental contact (the plaintiff failed to raise a triable fact as to the defendant’s actions being reckless or intentional) between persons confined to a pool lane during a free swim is a commonly appreciated inherent risk of swimming.

Rueckert provides swimmers peace of mind to enjoy their time in the pool, free from thoughts of potential liability. Swimmers need not worry whether their normal swimming activities may result in liability for injuries that may occur if they come into contact with another swimmer.

Thanks to Bryan Lipsky for his contribution to this post. If you have any questions, please contact Paul at .

WCM Grows In New Jersey

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WCM is pleased to announce that it has relocated its New Jersey office to new and expanded space in Springfield, New Jersey. Conveniently located in Union County, the new office is larger and more efficiently configured to address our staffing needs. As important, the Springfield office has more robust digital connectivity to enhance our connections with clients, courts, and adversaries whether by email, video-link, or other electronic means. The driving force for the move was to better serve our increasing client base throughout the Garden State.

We never forget that our mission is to provide our clients with superior and cost-effective legal services. We thank you for your business and look forward to working with you whether your matter relates to New Jersey, New York, or Pennsylvania.

For further information, please contact our Communications Director, Diana Mauriello at .

Court of Common Pleas Calls a Foul on Secondary Liability Claims Over Collapsing Soccer Dome (PA)

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The Court of Common Pleas of Pennsylvania dismissed contribution and indemnity cross-claims against a co-defendant, focusing on the lack of a basis for secondary liability claims against the co-defendant.

Plaintiff, Turkey Run Properties, LP initiated a lawsuit following the collapse of a soccer dome on property the company owns. Turkey Run leased the dome from Soccer Dome, LLC and used the agent Gleason Agency, Inc. to purchase insurance from Seneca Specialty Insurance Company to cover the dome. After the dome collapsed, Turkey Run filed a claim with Seneca, who subsequently denied to cover Turkey Claims after investigating the incident. Turkey Run then initiated suit against Seneca, claiming that Seneca breached their contract by failing to pay the claim, against Gleason for negligence in completing the insurance application, and against Soccer Dome for negligent maintenance of the dome itself. Upon answering Turkey Run’s complaint, all three defendants filed cross-claims against all the other defendants. While almost all of the claims settled, Gleason’s contribution and indemnity cross-claims against Soccer Dome remained unsettled. Seeking to have Gleason’s cross-claims dismissed, Soccer Dome filed a Motion for Discontinuance.

The Court of Common Pleas treated Soccer Dome’s motion as a Motion for Summary Judgment, and ultimately dismissed the contribution and indemnity cross-claims due to the lack of a legal relationship between the two parties and Gleason’s erroneous allegations of Soccer Dome’s secondary liability.

Gleason argued that it was in no way responsible for the accident as Soccer Dome was “actually responsible for the collapse.” Gleason further maintained that at most, it was secondarily liable, as it did not contribute to causing the dome to collapse as Soccer Dome did. But, the court dismissed Gleason’s argument as an incorrect understanding of primary and secondary liability, describing it as based on “some sort of ‘which negligence was worse’ analysis.”

Moreover, the court explained that Gleason’s focus on the cause of the collapse ignored the fact that the allegations against Gleason were grounded in the delayed insurance payment that Turkey Run linked to Gleason’s negligence in obtaining the policy. Turkey Run argued that such negligence on Gleason’s part resulted in additional mildew and mold damages while the parties argued over coverage. In light of the negligence allegations against Gleason, there was thus no basis to shift blame to Soccer Dome.

The court referred to the Pennsylvania Supreme Court’s explanation that “[t]he difference between primary and secondary liability is not based on a difference in degrees of negligence” as evidence of Gleason’s misunderstanding of secondary liability.

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