Mode of Operation Rejected in Sandwich Shop Slip (NJ)

In Hockman v. Burrellys LLC, a New Jersey Court recently dealt with the “mode of operation” doctrine in the context of a fall in a sandwich shop. Ordinarily, an injured plaintiff attempting to recover damages under a theory of negligence must prove that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. However, under the mode of operation doctrine, a plaintiff is relieved of proving actual or constructive notice where as a matter of probability, a dangerous condition is likely to occur as a result of the nature of the business. The burden is then shifted to the defendant to prove that it had taken reasonable steps to avoid the potentially dangerous condition. Importantly, for food services, the mode of operation theory had never expanded beyond the self-service customer setting where customers independently handle merchandise without employee assistance (e.g. supermarket fruit stands, salad bars, buffet-style delicatessens).

In this case, plaintiff approached the service counter to place her order. After ordering her sandwich, plaintiff decided to step outside to check if her car was legally parked. As she proceeded towards the exit, she slipped and fell on an unknown substance. Plaintiff testified that she did not see any liquid in the area where she fell, but she noticed that the bottom of her jean cuff was wet. The defendant shop-owner, who was the only other person present in the shop at the time of plaintiff’s fall, testified that she did not see anything on the floor. She also usually swept the shop’s floor in the afternoon and mopped at the end of the day. In addition, the last customer departed more than thirty minutes prior to plaintiff’s arrival.

At trial, plaintiff’s liability expert explained that plaintiff’s slip was caused by a hydroplaning effect—the tile flooring allowed liquid to freely move over the surface. He further opined that in a sandwich shop, liquids such as oil, vinegar, soda, and water have a probability of getting onto the floor. He also noted that the sandwich shop did not have standard procedures for inspections or maintenance, and did not place down mats or warning signs. At trial, the jury was charged under mode of operation doctrine and awarded plaintiff $1,280,081.67 in damages.

Defendant subsequently appealed asserting that the trial court erred by denying summary judgment on the issue of causation because plaintiff presented no evidence that she slipped on any substance. On appeal, the Appellate Division found that the trial court erred by finding that mode of operation doctrine applied to the facts of this case. The shop-owner explained that sandwiches were prepared and wrapped for customers. Although the shop had a refrigerator with prepackaged salads and beverages, plaintiff did not establish that the dangerous condition in this case was due to how these items were handled by other customers. Moreover, plaintiff had no idea what caused her to fall or why her jean cuff was wet. As such, without the mode of operation doctrine, plaintiff was required to prove that defendant had notice of the allegedly dangerous condition.

Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information.

This and That by Dennis Wade

In coverage and defense fights, the contest sometimes becomes personal and the warring advocates, insurers and lawyers alike, trade verbal barbs, often later regretted. Trading snarky remarks rarely advances the cause of either side and often brings down the wrath of the judiciary.  This unfortunate practice has spawned countless articles and continuing education courses, typically styled “Civility in the Practice of Law.”

Perhaps the best example of civility under stress comes from Ulysses S. Grant who, at the courthouse in Appomattox, treated Robert E. Lee with respect. In fact, before discussing the terms of surrender, Grant and Lee chatted about old times at West Point.  Not only was Grant a model of civility, his Personal Memoirs, published posthumously, is one of America’s great non-fiction literary works.  Grant’s prose, honed by the countless orders he wrote to men in the field, is simple, direct and moving.  And it is a book I recommend to all aspiring writers.  Grant’s account of meeting Lee at Appomattox touches me each time I read it:

“I was without a sword, as I usually was when on horseback in the field, and wore a soldier’s blouse for a coat, with the shoulder straps of my rank to indicate to the army who I was. When I went into the house I found General Lee. I had my staff with me, a good portion of whom were in the room during the whole of the interview…

“What General Lee’s feelings were I do not know. As he was a man of much dignity, with an impassible face, it was impossible to say whether he felt inwardly glad that the end had finally come, or felt sad over the result, and was too manly to show it… General Lee was dressed in full uniform which was entirely new, and was wearing a sword of considerable value. In my rough travelling suit, the uniform of a private, I must have contrasted very strangely with a man so handsomely dressed, six feet high and of faultless form. But this was not a matter that I thought of until afterwards.”

And that’s it for this This and That. If you have any thoughts on civility in coverage and defense litigation, please call or email Dennis.

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


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.

Lakers Toss Airball in Text Message Coverage Case

It is pretty much a given that anywhere you go, everyone is always on their phones. At sports stadiums, teams encourage fan interaction with fan social media posts.  Stores send text message alerts of special promotions, and doctors’ offices and salons now confirm appointments by text.  But all of these new uses for phone communication carry potential implications for insurers and their insureds under the Telephone Consumer Protection Act (TCPA) which is meant to prevent unsolicited telephone communication with consumers. In fact, many insurance policies now carry specific TCPA exclusion endorsements or exclusions otherwise relating to privacy invasion.

The 9th Circuit recently had to grapple with determining whether an invasion-of privacy exclusion applied to exclude coverage for TCPA claims in the case of L.A. Lakers v. Federal Ins. Co.  In November 2012, Lakers fan David Emanuel sued the Lakers, alleging that he used his phone to put a personal message on the scoreboard during a game at Staples Center, but subsequently began receiving texts from an autodialer. Emanuel’s case was dismissed with prejudice on the grounds that he implicitly consented to receiving a confirmation text from the Lakers when he submitted his original message. The Lakers then settled with Emanuel after he appealed to the Ninth Circuit.

The Lakers then sued its insurer, Federal, for refusing in bad faith to defend or indemnify the Lakers in the Emanuel litigation.  The insurer moved to dismiss, arguing that the policy’s invasion-of-privacy exclusion precluded coverage because a TCPA violation allegation is, in effect, a claim for a privacy breach. The trial court agreed with the insurer and dismissed the Laker’s complaint, holding that TCPA claims fall within the directors-and-officers policy’s invasion-of-privacy exclusion, and that the team was therefore not entitled to coverage.

The Lakers appealed to the 9th Circuit, and a 2-1 circuit panel upheld the trial court judge’s decision for Federal, finding that because a TCPA claim is “inherently an invasion of privacy claim,” the lower court properly concluded that the underlying suit against the Lakers was excluded from coverage. Thus, the Court held, the insurer did not breach the policy, or the implied covenant of good faith and fair dealing, in declining to defend against or cover the underlying lawsuit.

Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information.


High School Football Players Not Barred From Suing For Sideline Condition (NY)

A recent NY case dealt with whether High School football players assume the risk of getting injured  on a steel plate on the sidelines. In September 2010, Andrew Deserto, Jr., a high school student in Goshen Central School District, allegedly was injured while playing in a varsity football game at Franklin D. Roosevelt High School, located in Hyde Park Central School District. Mr. Deserto allegedly was tackled by two players from the opposing team and forced out of bounds, causing him to hit his head on a steel plate covering a pole vault pit several feet from the football field sideline.

As a result of the accident, Mr. Deserto filed a lawsuit in Orange County Supreme Court against Goshen Central School Districk and Hyde Park Central School District, claiming the placement of the steel plate in the vicinity of the playing field unreasonably increased the risk of injury to the players.

Both school districts moved for summary judgment, arguing that the lawsuit should be dismissed because it was barred by the legal doctrine known as the primary assumption of the risk.

The Supreme Court did not agree that the case should be dismissed without a jury ruling on whether the placement of the steel plate in the vicinity of the playing field unreasonably increased the risk of injury to the football players.

The Supreme Court’s decision was appealed, and the Appellate Division focused on whether the risk at issue was a “commonly appreciated risk.” The Court’s decision held that “pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.”

Further, participants in sporting events are “not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks.”  In line with these principles, the Court ruled that “[a]n educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks.”

Ultimately, the Appellate Division decided that the Supreme Court’s decision was correct in  determining that the defendants were not entitled to summary judgment because they failed to eliminate a triable issue of fact as to whether the placement of the steel plate in the vicinity of the playing field unreasonably increased the risk of injury to the participants.

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.

Material Misrepresentation About Claim Voids Coverage in PA – But Not In This Case

In Penn Nat’l Security Ins. Co. v. Kapinus, a Pennsylvania court recently considered whether a material misrepresentation could void the policy even though the statement was made in connection with a claim rather that at the time of the insured’s initial insurance application. This declaratory judgment action arose out of a claim that, while accompanying his father to a construction site, claimant Tyler Kapinus was struck by his father’s company truck and was injrued. The insured owned an excavation and construction business and held a commercial automobile policy with Penn National Insurance Company.

Penn National filed a declaratory judgment action seeking a determination that its insurance policy did not provide coverage for the personal injury lawsuit at issue. Penn National argued that the policy precludes coverage if the insured made a material misrepresentation regarding a claim or fails to cooperate with the insurer in the investigation of the claim.

Penn National contended that the insured sought to avoid the application of the coverage exclusion for work-related injuries by making material misrepresentations and failing to provide pertinent information regarding the claim. The insurer stated that the insured falsely represented that his son never worked for his business and further refused to identify bank records which may reflect the son’s prior employment with the insured.

Tyler filed preliminary objections, arguing that the material misrepresentation exclusion only applies to false statements made by an insured to induce the issuance of a policy, not to subsequent fraud by an insured in connection to a claim. Tyler further contended that the duty to provide pertinent information regarding the claim only requires the insured to assist in defending against the merits of an underlying personal injury action and not to aid the insurer in developing a basis to deny coverage for that claim.

The court decided that the plain language of the policy provides that there is no coverage if the insured misrepresents a material fact concerning a claim under the coverage, and because the insured intentionally misrepresented his son’s work history, the insurer had a viable basis for denying coverage under the appropriate exclusion. However, the court disagreed with the insurer’s claim that the insured failed to cooperate with the investigation, concluding that the bank records were not relevant to the evaluation and defense of the son’s lawsuit.

Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono for more information.

This and That by Dennis Wade

In 1L, a wise, legal writing adjunct professor gave me some excellent advice: “Don’t Let The Perfect Get In The Way Of The Good.” What he meant, of course, is writer’s block is most often a fear, an internal struggle to create the “perfect” argument, the telling analogy.  That mindset, he preached, inhibits the flow of what ought to be said. “Write, write–and then revise, revise, refine and refine again.”  The result, often, may not be perfect, but it will get the job done. I took that advice to heart.  And so, when my children complained about the difficulty of school essays, I would tell them: “Just do a ‘brain dump’ and see what comes out.  Then set it aside for a piece and return to the essay to revise and refine–and you’ll be surprised by what appears on the page.”

In Claims and Litigation all too often the Perfect does indeed get in the way of the Good. In fact, sports and what we do are closely analogous. Why do you think top performing athletes supplement coaches with sports psychologists? Golfer Jordan Spieth now works with Michael Phelps, who has enough Olympic gold around his neck to stoop with its weight (23 gold).  I could go on, with sport analogies, ranging from swinging a club to competitive swimming. A while ago, I read a book by Bob Rotella, a renowned sports psychologist, styled Golf Is Not a Game of Perfect. True, Rotella said, you could try to hit the “perfect” shot, say, a hook around a tree from the high rough.  But, he said, “What are the probabilities of success?”  Isn’t it smarter to play a safer shot into the fairway, he suggested, and hope for a good wedge into the green and a one putt par. Playing for Perfect might well take you out of tournament contention.

Outcomes in Claims and Law often turn on percentage plays. So, why get hung-up on the Perfect when the Good, most often, is what makes the difference between failure and acceptable loss ratios and happy clients?

A defense verdict, summary judgment awards and favorable DJ rulings are Perfect outcomes. But, like Rotella, our clients invariably ask us to “handicap” or assess the percentage of that Perfect outcome. I’ve never liked giving percentages. But discipline in the arena of litigation, just as discipline on the playing field, requires an honest assessment; it’s a matter of balancing risk versus potential reward.

Strive for the Perfect but don’t let it lead you to foolish decisions about managing risks in claims and litigated matters. And that’s it for this This and That. If you have thoughts on how best to balance the Perfect versus the Good, please email or call Dennis.

WCM Triumphant in Westfield Pizza Race

Perhaps a little hyperbolic but at least we got your attention. But no one could question that the weather was perfect for the race participants in this year’s Westfield 5k Pizza run! The WCM New Jersey office had a great turnout with Paul Clark, Denise Ricci, Heather Aquino, Joe Broccoli, Ken Eng, Jorgelina Foglietta, and Mike Noblett flying the firm’s colors, and Carole Becca, Marie Lindner,Tiffany Braithwaite, Ann Marie Murzin, and Vivian Turetsky cheering the team on from the sidelines. Special kudos to Heather for completing the race while holding baby Ava!

Denise finished 4th in her age group with Jorgelina close behind.  Before the race began, there were rampant rumors that Paul Clark would not be participating in this years race due age-related infirmities. We were surprised to see Paul geared up and ready to go as the race was set to begin. Kudos to Joe Broccoli who put his peer pressure tactics to good use and persuaded Paul to run the race!

Mike Noblett and Ken Eng ran for the first time this year – with Mike completing the race as the quickest male at WCM (but with the worst athletic wear) and Ken not far behind (fun fact: Ken used to run cross country – but Paul still pulled ahead of him in the final sprint). Steve Kim finished the race with grace but rumor has it that he was got passed by several children running without their shoes tied.

After the race, the group gathered at Darby Road Public House & Restaurant for some food and libations. Perhaps there are some audience members who would like to join the team next year!

Thanks to Steve Kim for contributing this post.