Setting Chain of Events in Motion Not Necessarily a Cause (NY)

We have all seen the scenario when a tragic accident results from a chain of events where more than one actor could have legal fault. We see this situation frequently when one of the tortfeasor’s insurance limits fall far below fair compensation, resulting in lawsuits against so called “deep pockets.”  Cases can be won on proximate cause when one party merely furnishes the opportunity for the real tortfeasor’s fault.

In the recent case of Goldstein v. Kingstona pedestrian was struck and later died from his injuries while walking in an intersection.  The defendant driver was moving in reverse at the time of the impact. Minutes before the accident, the defendant was driving on a one-way street in Queens when she came upon workers employed by the defendant Forest Hills Garden Corporation, who were re-sodding a part of the grassy area between the curb and the sidewalk. After a worker waved at her in a manner that she understood to mean that she could not proceed further on the one-way street due to the ongoing work, defendant drove her vehicle in reverse to an intersection, where she struck the decedent, who was walking in a crosswalk.

Goldstein, as executor of the decedent’s estate and individually, commenced this action against the vehicle’s owner and driver, as well as Forest Hills Garden Corporation, to recover damages for wrongful death. The Supreme Court subsequently granted FHGC’s motion for summary judgment dismissing the complaint insofar as asserted against it. The Appellate Division, Second Judicial Department affirmed the dismissal as to FHGC.

FHGC established evidence that its employees’ conduct in performing work near the roadway merely furnished the condition or occasion for the accident, and as a matter of law, was not a proximate cause of the decedent’s injuries. The driver’s decision to reverse her vehicle and drive back down the one-way street, ultimately striking the decedent, was the sole proximate cause of the accident.

The trial court and the appellate court held that FHGC demonstrated its prima facie entitlement to judgment as a matter of law. FHGC merely furnished the condition or occasion for the accident, and was not a proximate cause of the decedent’s injuries. The court reasoned that “There can be more than one proximate cause of an accident'” and “[g]enerally it is for the trier of fact to determine the issue of proximate cause.” However, “liability may not be imposed upon a party who merely furnished the condition or occasion for the occurrence of the event’ but was not one of its causes.”

Thanks to Vincent Terrasi for his contribution.

For more information, contact Denise Fontana Ricci at


Forum Selection Backfires if Venue Improper (NY)

Is it a plaintiff-friendly venue or a defendant-friendly venue? This is one of the first questions asked at the onset of any litigation.  Where a case is venued matters.  Nunez v. Yonkers Racing Corp. serves as a reminder to consider if the plaintiff has properly laid venue and move timely when not.

 In Nunez, the plaintiff filed his action in Kings County (widely regarded as a plaintiff-friendly venue), alleging that he resided in Brooklyn.  The accident occurred in Westchester (considered a more defendant-friendly venue).  At his deposition, the plaintiff admitted that he has always been a Bronx resident.  Defendant moved to change the venue to Westchester.  The lower court denied the motion.  The Appellate Division reversed and found that the plaintiff, in selecting an improper venue when filing his complaint, had forfeited the right to choose the venue.  Moreover, the court held that the motion to change venue, which has to be filed within 15 days of serving an answer to the complaint, was timely because the defendant promptly moved after learning the plaintiff’s true residency.

Thanks to Georgia Coats for her contribution.

For more information, contact Denise Fontana Ricci at


This and That by Dennis Wade

In the darkest days of World War II, England’s very survival depended on getting vital supplies and armaments across the Atlantic to home ports. The Navy knew they could not do it alone.  They needed to enlist the cooperation of the citizenry.  So, the War Ministry papered London and other port cities with posters sounding a simple but profound warning: Loose Lips Sink Ships.

In litigation, like war, loose lips can indeed sink the best efforts of counsel. Perhaps the best example of “loose lips” is the breaking story of two high-powered Washington lawyers, who were chatting in a toney Washington steakhouse about their efforts to coordinate the White House response to Special Counsel Robert Mueller’s document demands in the “Russian Investigation.” The problem was that the lunchtime discussion took place in earshot of New York Times reporter Kenneth Vogel.

The next day, September 17, 2017, Vogel and his colleague Peter Baker published an account of what was overheard while the lawyers dined al fresco at the BLT Steakhouse which is situated near the White House (and as it happens the Washington Bureau of the Times).

I invite you to Google the story for the salacious details. But for my purpose here, the story confirmed the rumors swirling in the Blogsphere that there was internecine warfare within the White House as to the proper scope of disclosure, and an intimation that certain documents were being withheld from Mueller.

While most defense and coverage cases do not involve matters of national import, great care must be taken to keep close counsel. The temptation to reveal key strategy to co-counsel, to the Court, to Mediators, or frankly, to just discuss the contest with others is often hard to resist. But vigilance and the Cannon of Ethics require that all client confidences and strategy must be closely guarded and revealed only when the time has come to use what has been lawfully withheld to advantage.

For example, if an expert, medical or otherwise, uncovers a telling fact or a winning theory, you might be tempted to discuss it. But an untimely disclosure or inadvertent “loose lips” slip may result in the other side massaging the facts to counter the potential defense. As Edgar said in Shakespeare’s King Lear, “Ripeness is all.”  All of us, then, must guard against inadvertent disclosure and decide, after consultation, when the telling fact or theory is “ripe” for disclosure.

At WCM, our lips are sealed and we have multiple layers of security to keep our network safe from prying eyes and cyber thieves.

And that’s it for this This and That. If you have any tales to tell about “loose lips” sinking your case, please call or email Dennis.

Food for Thought Regarding Quantum of Bodily Injury Damages

As defense attorneys and claim professionals, we collectively talk about case values in nearly certain terms.  A surgically repaired meniscus is worth X, a SLAP tear is worth Y, a cervical fusion is worth Z, and so on.  (I’m not posting injury values here, lest a crafty plaintiff attorney reference our blawg at a mediation some day.)   And while the facts of a case, differing treatment histories, witness presentation, or intangible factors invariably offer reasons to deviate from our initial numbers, the injury itself does offer a starting point, a baseline.   And we develop these baselines from our experience, from verdict searches, and by assessing risk at trial.

But for the most part, the jurors who actually decide on the case values begin their jury service with absolutely no idea what an injury is “worth,” in terms of compensatory damages.

Case in point — we were recently on trial in New York County, which, compared to other NYC boroughs, trends toward more reasonable damages awards.  (Of course, this is a very broad characterization of the boroughs.)   Without getting into the specifics, plaintiff’s counsel was looking for $250,000 for her client, who was injured in a pedestrian knockdown, and already had summary judgment on liability.  We saw damages much closer to $100,000.  (The case settled after plaintiff’s testimony for $125,000.00.)

After the jury was disbanded, we spoke with one of the dismissed jurors, who was curious about how settlement talks had progressed.  (Jurors are savvy enough to realize that settlement discussions are taking place outside of their presence.)  We informed the dismissed juror that the plaintiff, who had just testified, and was not particularly endearing or sympathetic, had been seeking at least $200,000 to settle.  The juror, who was college educated, attentive, and worked for a venture capital firm, immediately responded, “Oh, is that all?  I would have thought way more.”  Yikes. Granted, we had not yet presented our witnesses, but the $125,000 settlement now looked even better.

When the jury is only asked to decide a quantum of damages, as opposed to issues of credibility, liability or causation, their calculus may be less scientific than we would prefer.  Perhaps jurors are used to seeing subway ads, which constantly remind commuters about multi-million dollar verdicts.  Or, perhaps those who work in the venture capital world, like my juror, deal with too many “zeroes” in terms of dollars, and are not ideal defense jurors for damages.   Who knows?

We continue to rely on our experience, and on intimately knowing the facts and law of our case, so we can stick to our guns on values.   But jurors do not bring the same experience into the courtroom.  It’s our job to mold their thinking toward our planned conclusion.

Watch Where You Step: 2nd Department Affirms Sole Proximate Cause Defense (NY)

New York Labor Law §§ 240(1), 241(6) are notoriously plaintiff-friendly, and liability defenses are often limited at trial.  Defenses usually center on the sole proximate cause argument, which is often difficult to prove.  However, in Melendez v 778 Park Ave. Bldg. Corp., 2017 Slip Op 06175, the Second Department  affirmed the dismissal based on the sole proximate cause defense as well as other causation based arguments.

Plaintiff and coworkers were erecting a scaffold in the yard area of the defendant’s building to make a platform even with the sidewalk.  Plaintiff was building the platform portion of the scaffold by placing wooden planks on top of steel I-beams when he stepped onto an unsecured wooden plank, causing him to fall.  Plaintiff alleged violations of Labor Law §§ 240(1), 241(6), and 200, and common-law negligence against the owner and general contractor.  The Supreme Court granted the portions of defendants’ motion to dismiss the Labor Law §§ 240(1), 241(6) cause of action.  The plaintiff appealed.

The Appellate Division affirmed the Supreme Court’s judgment.  The Court opined that in order to succeed on a cause of action alleged violation of Labor Law § 240(1), a plaintiff must demonstrate that there was a violation of the statute and that violation was a proximate cause of the accident.  In this case, the plaintiff was found to be sole proximate cause as he chose to step upon an unsecured plank that he had just seconds before placed on a narrow steel beam rather than standing upon the secured planking that was available to him and which he had used in the time leading up to the accident.

The Appellate Division affirmed the dismissal of the Labor Law § 241(6) cause of action because the alleged violations of the Industrial Code provisions were not a proximate cause of the plaintiff’s injuries, or conversely, did not apply to the facts of this case.  The Court also affirmed the dismissals of the Labor Law § 200 and common-law negligence actions as against the general contractor, determining that the plaintiff’s injuries did not arise from a dangerous condition on the premises, but from the manner in which the work was being performed.  On that basis, a defendant must have the authority to exercise supervision and control over the work to be liable.  Here, the defendant did not have the authority to control, direct or supervise the method or manner in which the work was performed.

The sole proximate cause defense is case specific and often difficult to prove.  However, this case provides an example of the Appellate Division rendering a decision, taking the events leading up to the accident into fair account.   The Court’s common sense analysis resulted in a properly affirmed dismissal. Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.

Defendant Breached Partnership Agreement, Corporate Veil Pierced (PA)

A plaintiff in Philadelphia recently prevailed in a business dispute with his former real estate partner.  In Bravo v. 2536-38 North Broad Street Associates, C.P. Philadelphia No. 141101464, the defendant was ordered to pay his former business partner over $782,000 as a result of a breach of their partnership agreement by failing to pay the plaintiff money owed under the terms of the limited liability partnership.

According to the judge’s opinion following a bench trial, the parties formed a real estate partnership in 2010. The plaintiff initially joined as a limited partner and purchased a 10% ownership stake in the business, for which he was to receive a 10% cash flow payment from the partnership.  A few months later, the plaintiff invested additional funds in exchange for a 51% ownership stake of the business.  However, subsequently, the plaintiff did not receive his proportion of cash flow payments from the partnership, and the defendant also failed to inform him that there was a lien on one of the partnership’s properties, and that the property was listed for foreclosure sale.

During the time period in which the plaintiff did not receive his proportional disbursements, the judge also found that the defendant had transferred hundreds of thousands of dollars from the partnership to other business entities under the defendant’s control; and that the defendant had paid himself a salary from the partnership.  The defendant claimed that the money was diverted from the partnership in order to maintain his ability to secure a mortgage loan for the partnership, however the judge determined that such diversion of partnership funds was not contained in the partnership agreement between the plaintiff and the defendant.  The judge was similarly un-receptive to the defendant’s claim the plaintiff was not issued cash flow payments because the partnership was unable to obtain a mortgage loan.

Ultimately, the judge determined that the corporate veil should be pierced, since the defendant essentially ignored corporate formalities.  Morover, by failing to pay the plaintiff his proportional share of the partnership’s cash flow, the defendant had breached the partnership agreement.  We surmise that the judge’s findings relied heavily on financial data supporting the plaintiff’s claims of, essentially, theft, which supported the plaintiff’s version of events.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Lack of Specific Defense Testimony Prompts SJ Reversal in Premises Case (NY)

In a premises liability context, a property owner must establish that they did not create a dangerous condition that allegedly caused a plaintiff’s accident and that they did not have actual or constructive notice of the condition. In recent years, Court have raised the burden of proof for defendants to establish that they did not have constructive notice of a condition.

In Lombardo v. Kimco , LLC,2017 NY Slip Op 06531 (2d Dept. 2017), plaintiff slipped and fell on a wet and slippery substance on the floor of the defendants restaurant, Carrabba’s Italian Grill, LLC. The defendants established through testimony and affidavits that they did not create the wet or slippery condition and that they had a regular inspection and cleaning procedure in place so could not have had constructive notice. The Supreme Court agreed and granted summary judgment in the defendants favor.

The Appellate Division, Second Department, overturned the decision because the defendant failed to establish that the cleaning and inspection procedure was followed on the date of the accident and when the area had last been cleaned and inspected prior to the accident.  The Court found that without specific testimony from someone who cleaned or inspected the premises prior to the accident the defendant failed to establish that they did not have constructive notice of the condition.  In other words, the existence of maintenance protocols was not enough;   the property owner needed to show that it followed those protocols.

This increased burden for a defendant poses difficulty when a defendant is trying to establish lack of constructive notice. In most instances, the lawsuit has arisen years after the accident and the person who did the inspection may no longer be employed by the defendant. It is incumbent upon defendants to get statements from their employees when they are first notified of a loss and to keep in contact with them even if they leave. If defense counsel can’t locate the former employee who actually did the cleaning or inspection, summary judgment will be an uphill battle.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.


First Department Sustains Multi-Million Pre-Impact Terror Awards Following Crane Collapse (NY)

In Matter of 91st St. Crane Collapse Litigation, the First Department recently upheld a multi-million dollar jury award for pre-impact terror, potentially altering the landscape of such awards in the future.  At the very least, this decision will alter how plaintiffs litigate pre-impact terror.  (There were also significant awards for conscious pain and suffering, and punitive damages, which we will not address in this post.)

The case arose from two consolidated wrongful death actions following a catastrophic crane collapse on East 91st Street in Manhattan on May 30, 2008, which killed the crane operator, Donald Leo, and another construction worker, Kurtaj.

The crane  was 205 feet high, had four main components: a tower, a cab, a boom, and a counterweight assembly. The counterweight assembly and boom rested on a turntable, which allowed the whole crane to rotate. During the trial, which lasted almost a year, evidence came forth that prior to bringing the crane to the site, a bearing ring in the turntable developed a crack and required replacement. Plaintiff NY Crane, at the direction of its owner, Plaintiff James Lomma, chose to replace this key part of the crane using a Chinese company that it found through a Google search, instead of a more expensive, but reputable American company. Even after the Chinese company expressed doubt that it could correctly assemble the bearing ring, plaintiff’s chose to move forward. Before the crane could be used again, the new bearing had to be certified by the New York City Department of Buildings. Lomma and NY Crane contacted a number of engineers, all of whom refused to certify that the bearing was safe. Despite this, Lomma, who was not an engineer, self-certified the part and expedited the DOB process so that the crane could go back to work.

According to the Court, the plaintiffs’ deaths “arose from a series of calculated decisions made by Lomma over a period of months, during which time Lomma placed profit over the safety of construction workers and the public, despite having multiple opportunities to change course.” On May 30, 2008, the bearing ring failed. At approximately 8:00 a.m., the crane began to tip backwards, causing the boom to flip and strike the building across the street. Witnesses testified that they saw Leo, the crane’s operator, visibly panicked inside the cab as the crane tipped backwards, bounced off another building, and then ultimately fell to the ground. They testified that they saw him praying and trying to brace himself against the cab glass as he plummeted toward the ground. Similarly, witnessed testified that Kurtaj, who was on the ground, saw the crane falling toward him and yelled to his coworkers, “Run, run, the crane is coming down.”

Medical testimony showed that both Leo and Kurtaj were aware of their impending deaths, and that neither of their deaths were immediate. Based on Kurtaj’s defensive wounds, a medical expert testified that he tried to protect himself with his arms from falling debris. Rescue workers testified that Kurtaj was alive and conscious while trapped under the wreckage, and that he was heard screaming and in obvious pain. He had also been doused in diesel fuel, causing him to vomit and choke on noxious fumes and smoke. He was taken to the emergency room, where he died approximately four hours after his initial injury. Similarly, witnesses and EMS technicians testified that Leo was alive, with his eyes open and shaking, when they found him in the rubble. Rescue workers determined that his time of death was approximately 15 minutes after the accident.

A Manhattan jury awarded the decedents of plaintiff Leo $7.5 million for pre-impact terror, $8 million for pain and suffering and $24 million in punitive damages. The jury awarded the decedents of plaintiff Kurtaj 7.5 million for pre-impact terror, $24 million for pain and suffering, and $24 million in punitive damages. On appeal, a unanimous First Department slashed those awards, but still awarded $2.5 Million and $2 Million in pre-impact terror to Leo and Kurtaj, respectively. Decedents of plaintiff Leo ultimately received $5.5 million for pain and suffering and $8 million in punitive damages, while decedents of plaintiff Kurtaj received $7.5 million for pain and suffering and $9.5 million in punitive damages.

Even with these reduced awards, these are some of the largest pre-impact terror awards ever awarded in the State. Given the defendants’ actions, it is possible that these huge pre-impact terror were actualyl designed to punish Lomma’s “calculated decisions” that ultimately lead to the collapse.   In other words, the jury may have rendered a “punitive” pre-impact terror award here.  And even through the Court reduced the award, J. Webber nevertheless awarded more significant pre-impact terror damages than we commonly see.

Plaintiff’s attorneys in New York will almost certainly make concerted efforts to present specific evidence of pre-impact terror in wrongful death cases.  In this case, there was very specific evidence of the actions of both decedents after the accident, supporting their respective fears of impending death.  While every wrongful death case will not have such specific testimony (in fact, most do not) we expect all plaintiffs in wrongful death cases to cite this decision to support their sustainable damages claims in New York.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.


Evidence of Remedial Measures Inadmissible (PA)

The Superior Court of Pennsylvania recently upheld a lower court’s judgment in favor of the defendant in  Gold v. Plesset Properties.  The case arises out of a slip and fall on July 8, 2011 when plaintiff Debra Gold slipped and fell exiting Plesset Properties Partnership’s (“PPP”) property.  Shortly after the incident, PPP installed skid-resistant adhesive strips to prevent future slipping in the area.

Gold filed a complaint against PPP alleging negligence.  On the eve of trial, PPP filed a motion to exclude any evidence at trial mentioning remedial measures to the property subsequent to the incident, such as the skid-resistant strips.  Gold filed her own motion seeking to preclude PPP’s expert testimony.  The court granted PPP’s motion and denied Gold’s.  The subsequent jury trial found PPP not negligent and Gold appealed.

Gold asserted that the trial court erred in not permitting her to cross-examine a part owner of PPP on subsequent remedial measures.  Generally, in Pennsylvania, evidence of subsequent remedial measures is not admissible to show negligence.  However, it can be admissible for impeachment, to show ownership of a property, or the feasibility of precautionary measures.  The court disagreed with Gold and found there was no basis for impeachment in the matter since the witness did not contradict himself on ownership or the existence of skid-proof strips.

Gold also argued that the court erred in denying her to cross-examine PPP’s expert on subsequent remedial measures.  The court again disagreed with Gold and found that the defense’s expert did not base any of his testimony on the remedial measures, but rather solely the video of the incident.  Gold also argued unfair surprise in that she was unaware that PPP’s expert would testify.  Again, the court denied this argument and cited that Gold was notified the expert would testify a month before trial and was provided with his report in PPP’s pre-trial report 30 days before trial.

This case demonstrates the factor of subsequent remedial measures in cases. It is important for defense counsel to keep an eye on repairs and remedial measures made by clients.  Plaintiff’s counsel will try to use this as evidence that a defendant was negligent, because “why wouldn’t they be negligent if they’re installing remedial measures?”  The rationale behind excluding evidence of subsequent remedial measures is policy-based.  In short, property owners will be less inclined to improve defects, if evidence of those improvements help a plaintiff’s case.

Evidence of such measures present a compelling, but prejudicial argument to a jury, making it all the more important that defense counsel seek to preclude such evidence, and make sure their expert relies on the pre-repair conditions in his findings.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.


Who’s Behind the Wheel? Unlisted Resident Driver Exclusion Applies (PA)

On September 18, 2017, the Superior Court of Pennsylvania affirmed summary judgement in favor of Safe Auto Insurance Company (“Safe Auto”) in Safe Auto v Oriental Guillermo.  The case stems from a two-car motor vehicle accident in Allentown, Pennsylvania on April 29, 2013.  Rachel Dixon  was driving a car that her boyfriend, Rene Oriental-Guillermo (“Oriental-Guillermo”) owned, and Priscila Jimenez was a passenger in the other vehicle.  Guillermo insured his car through Safe Auto, which had an Unlisted Resident Driver Exclusion, which excluded from coverage those individuals who lived with Oriental-Guillermo, but were not related to him and whom he did not specifically list on the policy.  Here, Dixon lived with Oriental-Guillermo, but was not related to him and was not listed as a driver on his policy.

On May 13, 2015, Safe Auto filed a declaratory judgment action to enforce the Exclusion, and Safe Auto’s a motion for summary judgement was granted by the trial court.  The trial court enforced the Exclusion and held that Safe Auto had no duty to defend or indemnify Dixon.  Priscila Jimenez and Luis Jimenez timely appealed arguing that: (1) the Exclusion does not apply to the facts of the case; and (2) the Exclusion is unenforceable because it violates the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. 7501 et seq. (“MVFRL”) and public policy of the Commonwealth of Pennsylvania.

The court held that the policy language was unambiguous, and further stated that there is no dispute that Dixon lived with Oriental-Guillermo, is unrelated to him, and he did not list her as an additional driver on the policy.  Thus, the trial court properly found that the exclusion applied and Safe Auto was not obligated to defend Dixon.

Next, the court considered whether the Exclusion violated the public policy expressed in the MVFRL.  Appellants specifically argued that the Exclusion contravenes the MVFRL’s requirement that an owner of a motor vehicle ensure that all drivers of his vehicle are covered by insurance.  The court held that this argument supports the trial courts interpretation of the exception because it places the onus on the owner of the vehicle to ensure that everyone who drives his car have insurance.  There is no provision in the MVFRL that suggests the legislature intended to shift the risk to insurance companies to insure unidentified individuals who live with the insured, but are not related to the insured.

Finally, the court held that the Exclusion does not violate public policy.  Appellants argued that the Exclusion is contrary to the MVFRL by analogizing it to a Named Driver Only Exclusion.  This type of policy allows a policyholder to exclude certain individuals from his or her policy.  But the court ruled that the legislature placed the burden on the insured to make sure that individuals who drive the insured’s vehicle have insurance — the insurance company does not bear that burden.  Thus, the court affirmed the trial court ruling and concluded that Safe Auto was entitled to Summary Judgment. Thanks to Garrett Gittler for his contribution to this post.  Please email Brian Gibbons with any questions.