Skier Maneuvers Through Summary Judgment Minefield (NY)

In ­­­­­­­­­­­Sopkovich v. Smith, Plaintiff commenced this action seeking damages for injuries sustained when he and defendant, a snowboarder, collided on a ski trail. Defendant moved for summary judgment under the theory of assumption of the risk and that defendant did not engage in any “reckless, intentional, or other risk-enhancing conduct not inherent in the activity.” The lower court dismissed this case and the plaintiff appealed.

The Appellate Division, Fourth Department reviewed the facts and ruled the lower court erred in its granting of summary judgment. Although there is an inherent danger in skiing and snowboarding, the other prong of the test was that the defendant was not reckless or engaged in conduct not inherent in the activity. Both plaintiff and defendant were veteran skiers/snowboarders.

Plaintiff testified that he was “slow[ly]” skiing down a beginner trail when defendant merged onto that trail from an intermediate trail and impacted plaintiff from the left.” By contrast, defendant, an “advanced” snowboarder who was familiar with the trails, testified that he had already safely merged onto the beginner trail at an “average” or “normal” speed, was further down the beginner trail than plaintiff and was “very close to a complete stop” at the time of the collision, having observed plaintiff “going fast” “down the hill in a straight line.”

Plaintiff submitted an affidavit from an emergency room physician who was also an 11–year veteran of the National Ski Patrol. Based on his review of the depositions and other records related to the case, the expert opined that, given the nature and extent of plaintiff’s injuries, “there [was] no question [that] the force with which [defendant] impacted [plaintiff’s] left side and back was immense” and that plaintiff’s injuries were “not consistent with [defendant’s] deposition testimony” that he had come to or nearly come to a complete stop. The expert thus concluded that defendant had “unreasonably increased the risk of harm” to plaintiff.

The Appellate Division concluded that plaintiffs raised triable issues of fact whether defendant engaged in reckless conduct. As the record established that the collision was exceedingly violent there is “at least a question of fact … whether … defendant’s speed in the vicinity and overall conduct was reckless.”  As such, the expert testimony contradicted the defendant, thus creating a question of fact.  A fine maneuver by the plaintiff and a reminder that summary judgment will rarely be upheld if there is credible expert testimony sufficient to take the case before a jury.

Thanks to Paul Vitale for his contribution to this post.


Failure to Discontinue Constitutes Bad Faith, Frivolous Continuation Warranting Sanctions (NY)

A Justice of the New York County Supreme Court recently imposed sanctions on a plaintiff who refused to discontinue against a defendant that made a showing of non-involvement in the happening of the subject accident.  In Burgund v. Verizon, plaintiff commenced a Labor Law action after he tripped and fell stepping off of a ladder during his work for Verizon. During the deposition of building’s managing agent, plaintiff learned of the potential involvement of a third party entity known as “A&S.” Thereafter, plaintiff named A&S Group and A&S Construction Corp., among others, as defendants in a separate case that was ultimately consolidated.

Upon service of the complaint, A&S Group’s principal immediately contacted plaintiff, explaining that A&S Group had never performed work in the building, never worked for Verizon or any of the other named defendants as a subcontractor or in any other capacity, had no involvement with A&S Corp or its principals, and was not even in existence at the time of the alleged accident. However, plaintiff’s counsel refused to discuss the matter until A&S Group was represented by counsel.

Thereafter, A&S Group composed a series of letters over the course of a one-year period, each requesting a voluntary discontinuance against. Each time, these letters went unanswered. Ultimately A&S Group moved for summary judgment in its favor, denying any liability and asserting that plaintiff wrongfully included it in the action without any factual basis. The Court granted the motion, finding that A&S Group had presented affirmative evidence that it never performed any work at the subject building, had no professional relationships with any of the named parties, and was not even a registered corporation at the time of the accident.

Further, the Court determined that “regardless of whether [p]laintiff originally brought the action in good faith, plaintiff’s repeated failure to voluntarily discontinue the action, despite three specific requests… constituted a bad-faith frivolous continuation that warranted sanctions.”

Thanks to Tyler Rossworn for his contribution to this post.

Store Owes No Duty to Control Unexpectedly Rowdy Patrons (PA)

On August 17, 2017, the Superior Court of Pennsylvania affirmed an entry of summary judgment in favor of several defendants in Reason v. Kathryn’s Korner Thrift Shop et al.  The case involves a fight at a thrift shop in Philadelphia.  On the date of loss, Reason went shopping at Kathryn’s Korner Thrift Shop, where Defendant Riley was a cashier, and her daughter, Thomas, was also present at the store.  (Thomas has a history of mental illness, but there is no evidence that she was violent.)  As Reason was making purchases at the register, Thomas accused Reason of throwing something at her mother, and Reason and Thomas began fight.Riley pushed a panic button at the store and called the police with her phone.

We surmise Reason lost the fight, because she filed suit against Riley, Thomas, the thrift store, and the other owners of the property, alleging various claims for negligence and assault and battery.  All of the defendants, except for Thomas, were granted summary judgment.  Reason then appealed on the issues of whether the defendants owed her a duty to protect her against acts by third persons and whether they breached a duty to provide aid.

In Pennsylvania, there is generally no duty to control the acts of third parties unless a defendant stands in a special relationship with either the actor or the victim.  The relationship between a business and its invitee is one of those relationships.  Pennsylvania then follows the Second Restatement of Torts section that states that a possessor of land owes a duty to invitees for negligent or intentional acts by third parties only if they can reasonably anticipate such conduct.  The court found no evidence that defendants should have reasonably anticipated Thomas’s violent behavior.

When it comes to a duty to aid, Pennsylvania has rejected the Restatement of Torts and only imposes a duty upon businesses to call for medical professionals or police when necessary.  Businesses and their employees are under no duty to jump into the role of a medic or police officer since this would then place untrained persons in harm’s way as well.  The court again affirmed the lower court’s decision and found that because Riley pressed the store’s panic button and called the police on her phone, that she and the other defendants had fulfilled their duty to come to Reason’s aid.  As such there was no breach.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

WCM Partner to Speak at Privacy Shield Certifications Webinar.

WCM Partner Bob Cosgrove, a CIPP-US and CIPM, will be one of two speakers at an August 31, 2017 webinar entitled Privacy Shield Certifications: Things You Need to Know. Mr. Cosgrove will focus his portion of the presentation on:
1. Privacy Shield: Requirements and advantages of participating in the event of litigation.
2. Serving Two Masters: The litigation process, discovery, and data transfer from the European Union.
a. Why discovery involving European Data is a challenge and what Privacy Shield does and does not do to remedy the problem.
3. There is Nothing New Under the Sun: The implications of Privacy Shield on member state data blocking legislation.
a. Blocking legislation in member countries is still effective.
b. How the United States courts have handled blocking legislation and data transfer restrictions.
4. Privacy Shield Enforcement: The arbitration process and liability for failure to comply with Privacy Shield requirements.
If you are interested in the webinar, more information can be found here, or e-mail Bob Cosgrove.

Sad Times for Lloyd’s of London.

All good things must come to an end, and, so at last, it seems that lunches with Lloyd’s will now become more American with salads and iced teas rather than two courses and bottles of wine. The reason? Because Lloyd’s has now banned drinking during working hours. Hard times for we coverage lawyers who rely upon the afternoon underwriting of risks to ensure gainful employment! To say nothing of the poor pubs and restaurants!

Thank goodness for a trip I was able to make to Lloyd’s a few weeks back, where there was no visible sign of prohibition at work and drinks still flowed freely during the working day.

Arbitration: The New Legal System?

Anyone who litigates knows that arbitration clauses have become increasingly popular. Indeed, it is no longer uncommon to be forced to defend both a personal injury litigation in state court and a contractual litigation in an arbitral forum. A current New York Times series has begun to explore this issue and it sheds some interesting light on what the impetus for the clauses might be and the complications that result therefrom. It’s something for insurers to keep in mind since the potential for increased costs (and more damaging awards) seems high. To our mind, whatever flaws our jury system has, it’s better than an arbitration. To paraphrase Churchill, it’s the worst possible system, except for all the rest.

For more information about this post please e-mail Bob Cosgrove .

Contracts 101 Lesson of the Day – “Sign the Contract”

In Bair v. Manor Care et al., 2015 WL 178258, Ms. Bair, Executrix of her mother’s estate, commenced a wrongful death and survival action against Manor Care, a nursing home, alleging that neglect and abuse of her mother at the facility lead to her death.

Manor Care sought to have the case referred to arbitration pursuant to the terms of an arbitration agreement executed by Ms. Bair. The Superior Court found that no such agreement to arbitrate existed, as there was nothing to demonstrate mutual assent between the parties.

The arbitration agreement form, supplied by Manor Care, contained language that expressly required the signatures of both parties. Ms. Bair signed on the line indicated for the “Patient’s Legal Representative,” but both the signature lines for the “Center” and the date were conspicuously blank. Moreover, the arbitration brochure, which the arbitration agreement specified was part of the agreement and thereto attached, was not actually attached.

Despite arguments that, “lack of signature by the facility representative does not render the agreement unenforceable,” the Court maintained that the signature of one party is insufficient to bind both parties, when a signature for each of the parties is expressly required. Further, the Court found that not only was the signature missing but so too were other essential elements of the contract.

Lesson of the day: If you have an agreement that you intend to bind another party, make sure you sign it yourself.  Thanks to Tiffany Davis for her contribution to this post.

Need to Show “Justifiable Reliance” in UTPCPL Case Defeats Class Action

Before a class action lawsuit can be pursued in Pennsylvania, plaintiffs must obtain an order from the court certifying the suit as a class action lawsuit.  In assessing whether to certify, the court must determine whether a class action lawsuit is a fair and efficient method for dealing with the controversy. A recent decision from the Superior Court of Pennsylvania demonstrates that this determination can hinge on the difference between common questions of fact and law and those questions specific to each individual plaintiff.

Connie Kern was rushed to the Lehigh Valley Hospital ER after suffering injuries at an amusement part. Pursuant to the hospital’s policy, Kern signed an authorization for treatment upon arriving at the hospital. However, according to Kern, based on the payment guarantee paragraph of the authorization for treatment document, Kern was not informed of the price he would pay for services versus the price charged to patients with private or government insurance. Kern alleged that the hospital concealed that uninsured patients, like himself, would be billed according to a “Chargemaster” list, which cannot be obtained by patients.

After being released from the hospital, Kern received a $14,626.53 bill from Lehigh Valley Hospital. Kern neglected to pay his bill. Instead, Kern filed an original complaint against the hospital alleging, inter alia, violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL).  Kern then moved for class action certification for other similarly situated patients. After hearing extensive arguments from Kern and the Lehigh Valley Hospital, the trial court denied the motion for class certification. The court held that Kern failed to establish that his claims presented questions of law or fact common to the class. Instead, the court determined that the prevailing issue in the case would be each class member’s individual justifiable reliance on the hospital’s representations.

On appeal, the Superior Court affirmed the trial court  – Kern failed to demonstrate that “he and all prospective class members justifiably relied on [the hospitals]’s alleged violations of the UTPCPL and, as a result of those alleged violations, suffered an ascertainable loss.” As such, Kern’s individual reliance was the major issue in the case, and denial of class certification was proper.

Moving forward, plaintiffs and potential members of class actions suits need to carefully consider all of the elements they need to successfully prove in order to assert their cause of action. If the elements of their claim require proof individualized to each potential plaintiff, a class action suit will probably be out of reach.  Thanks to Erica Woebse for her contribution to this post.  Please email Brian Gibbons with any questions.

USPS Not Reliable? Mailbox Rule Eroded by 3rd Circuit (PA)

It used to be that the United States Postal Service was so reliable that if a litigant attested to sending a salient piece of evidence by mail, it was presumed to have been received by the other party, known as the “mailbox rule”.  However, recently the Third Circuit recognized the difficulty of this position for a defendant—requiring him or her to prove a negative.


In Lupyan v. Corinthian Colleges, the Third Circuit reversed a decision by the U.S. District Court for the Western District of Pennsylvania granting summary judgment for the plaintiff’s employer in a FMLA case.  Lupyan had sued Corinthian for interference with her FMLA rights on the basis that it never sent her a letter confirming her leave for depression fell under FMLA.  Corithian, in its motion for summary judgment, included four affidavits from mailroom and human resources staff noting that the requisite letter had been sent.  The Western District thereby granted the motion because the college was afforded the benefit of the presumption of the receipt of properly mailed letters under the “mailbox rule,” and, thus, it was Lupyan’s responsibility to prove she did not receive the letter.


The Third Circuit overturned this decision noting that the presumption under the mailbox rule is a very weak presumption, especially today where letters can be easily certified or tracked, or proof of receipt obtained.  In these circumstances, the mailbox rule presumption was insufficient to establish receipt of the letter as a matter of law.  The court also noted the extreme difficulty faced by individual parties who are required under the rule to “prove a negative”—by establishing that they did not receive the disputed mail. Thus, it appears the Third Circuit has struck another blow the viability of this longstanding common law rule, thereby implying that it is largely insufficient as an evidentiary strategy.


This case serves as a useful reminder that all important letters and filing should always be attached to a tracking number to ensure proof of service.

Thanks to Remy Cahn for her contribution.

For more information, contact Denise Fontana Ricci at .


Hurray for the USA!

We have previously commented on the lack of personal space in London offices. Now there is a new reason to question the efficacy of the open floor model – apparently open floor office “commotion impairs workers’ ability to recall information, and even to do basic arithmetic.” So, yet again, there is scientific proof that the bigger American way is better.

For more information about this post, please contact Bob Cosgrove at .