Author Archives: Paul F. Clark

Court Finds Labor Law §240(1) Applied Even When Plaintiff Never Left the Ground (NY)

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In Passantino v. Made Realty Corp., plaintiff was part of a three-man crew installing fiber optic cable.  The crew was working inside a courtyard on ground covered with sand and gravel.  Plaintiff’s coworker was on a ladder installing cable and plaintiff was holding the bottom of the ladder.  Plaintiff let go of the ladder momentarily and it began to fall.  Plaintiff reached to stop the ladder and his coworker from falling and, in the process, plaintiff slipped on the sand and gravel and injured himself.

The Second Department affirmed the lower court’s decision granting plaintiff’s motion for summary judgment on his Labor Law §240(1) claim.  The court held that this type of harm was a direct consequence of the force of gravity and therefore falls within the scope of the statute.  Defendants failed to provide the appropriate safety device to plaintiff, and that failure was a proximate cause of his injuries.

On the other hand, the Second Department granted defendant’s cross-motion for summary judgment dismissing the Labor Law §241(6) claims based on alleged violations of Industrial Code Section 23-1.7(d) and e(2).  The court held that plaintiff was not injured in an area consisting of a floor, passageway, walkway, scaffold, platform, or elevated surface and, therefore, the code provisions were inapplicable.

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

Court Rejects Asbestos Laundry Case (PA)

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Earlier this month, the Superior Court of Pennsylvania denied a wrongful death claim in Haldman v. Eaton Corporation that alleged a women developed terminal cancer as a result of her exposure to asbestos while doing laundry. The suit was brought by Daniel Haldaman, the executor of the estate of his wife, Gerda Haldaman.

Evidence suggested that Gerda’s husband, Ray Haldaman, may have been exposed to asbestos dust in the Pennsylvania steel mill where he worked. In fact, the appeals court concluded that in general, asbestos containing products were present in theRay Haldaman’s workplace during the time of his employment. Daniel Haldaman sued the manufacturers of the asbestos-containing brakes that were present in the mill and further alleged that Gerda routinely washed her husband’s clothes, which were “dirty and covered in dust.”

However, the appeals court determined there was no evidence of specific exposure to any of the asbestos-containing products. According to the court, “those statements identifying particular products and times did not mention the presence of Ray Haldaman, and specific references to Ray Haldaman did not place him in the proximity of specific asbestos containing products at specific times.” In sum, there was no nexus between Ray—and by extension Gerda Haldaman—and the asbestos-containing products manufactured by the defendants.

The court concluded that Daniel had only established the potential for exposure, but did not conclusively prove asbestos exposure from a specific source. As a result, the appeals panel upheld the grant of summary judgment for product defendants. The case provides interesting insight into what future plaintiffs need to establish in the increasing number of asbestos cases.

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

Possible Foul Called on Syracuse Basketball Coach (NY)

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The long running saga of former Syracuse associate men’s basketball coach Bernie Fine continues. According to two former “ball boys” of the team, Fine sexually abused them in the 1980s.  Syracuse stated that it investigated those claims in 2005 but was unable to corroborate them.

In 2011, plaintiffs’ claim became public when ESPN reported on the allegations against Fine. The ESPN story was apparently triggered by the scandal that exploded about the alleged sexual abuse of minors by former Penn State University assistant football coach Jerry Sandusky.  In response to the ESPN story, Syracuse Men’s Head Basketball Coach Jim Boeheim made statements questioning the truthfulness of plaintiffs’ claims of sexual abuse.  In some of his stronger statements, he called the accusers of Fine liars and stated that their allegations were financially motivated.  In response, the plaintiffs commenced a defamation action against Boeheim and Syracuse University claiming that those statements were false and defamatory, causing them economic, emotional and reputational damages.

Like their vaunted and aggressive 2-3 zone defense, Boeheim and the University filed a pre-motion to dismiss arguing that the statements were only “opinions,” which are a form of protected speech. The Syracuse team prevailed in the preliminary rounds but lost in the finals before the Court of Appeals, New York’s highest court. In analyzing the statements, the Court held that they could be considered “factual assertions,” implying that the pair had lied, for financial gain, and had previously made similar statements for the same reason.  The case continues, likely with a full exploration not only of the basis for the statements made by Boeheim but of the truthfulness of the allegations made the plaintiffs and the extent of their damages.

Syracuse may have lost in this pre-season [pre-answer] proceeding but we predict that the regular season [litigation] will be long, costly and exhausting for both sides.

If you have any questions or comments, please email Paul at .

Fraud Still Considered “Professional Services” for Purposes of E&O Sublimit (PA)

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The Court of Appeals for the Third Circuit recently found that an accounting firm whose employee embezzled and misappropriated client funds is required to reimburse its insurer’s defense costs in excess of the applicable sublimit because, despite the fraud, the employee rendered “professional services” as defined by his firm’s professional liability insurance policy.

In CAMICO Mutual Insurance Co. v. Hefler, Radetich & Saitta, LLP, CAMICO insured Hefler, a Philadelphia accounting firm, under a claims-made Accountants Professional Liability insurance policy that provided limited cover for third-party losses arising out of the firm’s misappropriation, misuse, theft or embezzlement of funds.  CAMICO policy was asked to cover Hefler’s alleged misappropriation of settlement monies it was assigned to administer.  It was  alleged that a senior claims analyst defrauded three separate class actions of tens of millions of dollars by working with co-conspirators to file false claims.  Specifically, in the civil suit that followed the analyst’s criminal prosecution, CAMICO defended Hefler subject to a reservation of rights that expressly preserved its ability to recover defense costs and expenses exceeding a $100,000 sublimit concerning misappropriation, fraud and embezzlement.

Eventually, CAMICO sought declaratory judgment from the United States District Court for the Eastern District of Pennsylvania that it owed no defense or obligation beyond the $100,000 sublimit and was entitled to reimbursement of its excess costs.  After the trial court granted summary judgment in favor of CAMICO, Hefler appealed to the Court of Appeals for the Third Circuit, arguing that the sublimit did not apply because Penta’s fraud did not satisfy the policy’s “professional services” trigger.  More specifically, Hefler suggested that Penta’s actions fell outside the sublimit because his fraudulent administration of settlement funds did not produce fees or commissions for the benefit of his employer, Hefler.  The Third Circuit summarily rejected this argument as an overly restrictive reading of the policy that would gut the sublimit wherever an employee engaged in independent criminal conduct.  As a result, the Third Circuit affirmed the trial court’s declaration and ordered Hefler to reimburse CAMICO for defense costs and fees incurred in excess of the $100,000 sublimit.

While particularly poignant in the context of professional liability, the Third Circuit’s reasoning is also instructive in other niches where defense or indemnity may turn on whether an employee’s independent criminal acts fall outside the ambit of coverage.

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

MVAIC May Be Stuck With Fare From Taxi “Dooring” Accident (NY)

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The Motor Vehicle Accident Indemnification Corporation (MVAIC) is a non-profit corporation established Under Article 52 of the New York Insurance Law to provide compensation to innocent victims of motor vehicle accidents within the state involving drivers without collectible insurance or whose identity cannot be ascertained.

On October 17, 2011, a bicyclist attempting to pass a stopped taxi was struck by the rear door opened by the departing passenger.  Once the passenger was out of the taxi, the taxi driver left the scene without being identified. Samarskaya v. Motor Vehicle Accident Indemnification Corp., 158018/12 NYLJ 1202671795516, at *1 (Sup., NY, Decided September 18, 2014).

The bicyclist claimed injuries and, unable to identify the driver or owner of the cab, filed a claim with MVAIC.  MVAIC denied the claim and the passenger sued.  MVAIC moved for summary judgment on the theory that the Insurance Law did not intend MVAIC to cover injuries caused by passengers exiting vehicles.

MVAIC relied upon a 2010 decision (Kohl v. American Tr. Ins. Co., 15 N.Y.3d 763, 906 N.Y.S. 2d 809) with the identical facts. In Kohl, the New York Court of Appeals held that a passenger opening the rear door of a taxi did not constitute “operation” of the taxi.

The Samarskaya court distinguished their case from Kohl in that MVAIC’s obligation to the claimant is based upon the “use” of a vehicle (citing Insurance Law 5218 (a)) and Kohl was decided based on the term “operate” in the underlying insurance policy.  The court reasoned that the “very purpose” of a taxi includes picking up and dropping off passengers and thus, the opening and closing of the rear doors is use of the taxi under the Insurance Law.

The court adhered to the language of Article 52 of the Insurance Law to support this decision, but the reasoning suggests an expansive interpretation of “use” a taxi that may have an impact on the interpretation of insurance policies covering taxi fleets.  Stay tuned for the inevitable appeal.

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

Mall Stuck Because of Ancient Incidents (PA)

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As a general rule, third-party criminal acts may be sufficiently unforeseeable to relieve the defendant of liability in a claim for negligence.  That overarching principle, however, appears to be slowly eroding in Pennsylvania where a strict adherence to the Restatement (Second) of Torts recently prompted a three-judge panel of the Superior Court to conclude that a single incident of criminality on a premises triggers the possessor’s duty to generally safeguard against third-party acts.

In the case of Young v. Prizm Asset Management Company, the plaintiff filed suit against a variety of entities involved in the operation of the Steamtown Mall in Lackawanna County, Pennsylvania, after she sustained injuries in an attempted car-jacking that occurred in the parking garage.  Specifically, the plaintiff contended that the Mall defendants unreasonably failed to prevent the attempted car-jacking even though a similar event had occurred at an adjacent leased parking lot years before she began her employment.  Ostensibly taking into account the isolation of this prior incident, the Lackawanna County trial court eventually granted summary judgment in favor of the Mall defendants, noting that they had no duty to prevent an unanticipated criminal assault in an area open to members of the general public.

In the appeal to the Superior Court that followed, the plaintiff argued that the trial court had erred in granting summary judgment because the Restatement (Second) of Torts imposes liability on land possessors for “physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons.”  In ultimately accepting the plaintiff’s premise, the Superior Court explained further that a land possessor’s duty to protect against third-party actions is triggered by prior notice of such actions without regard to the time or place of occurrence.  In fact, the Superior Court affirmed the notion that a duty to protect the entire property exists where the possessor merely “knows or may have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general [that] is likely to endanger the safety of a visitor.”  Consequently, the Superior Court found that the trial court had abused its discretion in granting summary judgment in favor of the defendants and reversed for further proceedings.

Although the core concept in Young may not come as much of a shock in Pennsylvania, the facts that underlie the decision are particularly disconcerting insofar as they suggest that one criminal or unlawful act by a third-party may be sufficient to impose liability on land possessors for their failure to reasonably protect against a wide array of unrelated incidents that may occur subsequently on the premises.

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

Emergency Doctrine Excuses Driver’s Rear End Hit (NY)

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In Garcia v. Stewart, plaintiff was lawfully driving her car when a vehicle driving in the opposite direction crossed the double-yellow line and crashed into her car. The driver of the other vehicle admittedly fell asleep at the wheel.   Another vehicle was also traveling directly behind plaintiff’s car. After plaintiff’s car was hit, it was pushed backwards. The vehicle behind her tried to avoid the collision by swerving, but could not get out of the way in time and collided with plaintiff’s car a couple seconds after the initial impact. Plaintiff sued both the driver of the car that initially caused the collision and the driver of the car behind her. The second driver, the movant, moved for summary judgment dismissing all claims against him but the Supreme Court denied the motion.

The First Department reversed holding that the emergency doctrine applied. Under the emergency doctrine, “when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the action may not be negligent if the actions taken are reasonable and prudent in the emergency context.” The court held that the movant’s testimony was consistent with the other parties version of the accident and neither plaintiff nor the other driver offered anything more than mere speculation and surmise to show how the third driver could have avoided the accident.

In New York, there is a presumption of negligence against the rear-most driver in a rear-end collision. However, that presumption may be rebutted by evidence of a non-negligent explanation. The First Department got this right when it found that the emergency situation adequately excused the trailing driver’s actions.

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

New York Yankees Denied Summary Judgment after Allegedly (and, If True, Finally) Making Contact (NY)

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2014 is not a year in which the New York Yankees have been known for making contact, but that is exactly what the plaintiff in Francis v. New York Yankees Partnership  alleges.  According to the plaintiff, while she was in the basement concourse of Yankee Stadium, she had to get out of the way of a golf cart heading toward her.  After dodging the golf cart, she allegedly tripped over some handlebars that protruding from the bottom of a batting screen.

The Supreme Court granted the Yankees’ motion for summary judgment, but earlier today, the First Department reversed. While acknowledging the Yankees’ argument that batting screens are not inherently dangerous, the court held that the issue was whether handlebars protruding from the bottom of a batting screen was a reasonably foreseeable tripping hazard.  Because that issue, and the issue of whether a golf cart constituted an intervening cause, presented questions of fact, the court held that the lower court erred in granting the Yankees’ motion.

The past two seasons have shown that golf carts and handlebars in a baseball stadium do not guarantee success on a field. Francis shows that they do not guarantee success in a court either.

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

Sunny Day Sidewalk Fall Contributes to Finding of “Trivial” Defect (NY)

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Due to the volume of pedestrian traffic, New York City property owners are held to a heightened duty to keep their properties free of defective and dangerous conditions.  In addition to common law considerations, no fewer than three NYC Administrative Code Sections (§7-210, §16-123 and §19-152) establish a non-delegable duty of property owners to maintain sidewalks abutting their property in a safe condition.

However, not every abnormality or defect on a City sidewalk is actionable.  In Firtell v. 173-175 East 91Realty Corp., the plaintiff sued a property owner after allegedly tripping on the raised metal frame of a sidewalk cellar door in front of the building.  She moved for summary judgment against the property owner on §7-210 grounds.

The court reviewed plaintiff’s deposition testimony and photographs of the alleged defect.  The court found the photographs showed that the height differential between the raised metal frame of the sidewalk cellar door and the sidwalk was “trivial” and insufficient to establish a defective or dangerous condition as a matter of law.  The size, dimensions and appearance of the raised cellar door were all a factor but the court also emphasized that the plaintiff’s incident occurred on a beautiful day in broad daylight to support its decision.

Despite the high standard of care that exists, property owners defending premises liability claims can benefit from strong photographic evidence and plaintiff’s testimony regarding the weather and lighting conditions at the time of the incident to defeat summary judgment motions.

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

Failure to Use Consistent Exclusionary Language Dooms UIM Limitation (PA)

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Timothy Clarke suffered serious injuries when his motorcycle crashed into a car. Clarke was thrown from his motorcycle and spent eleven days on life support at Paoli Memorial Hospital.

After the accident, Clarke sought coverage under the underinsured motorist coverage clause (“UIM”) of an insurance policy issued by MMG Insurance. MMG denied Clarke any UIM coverage, stating that the motorcycle involved in the accident was not a “covered vehicle” under the policy. The MMG policy covered Clarke’s two automobiles, while an American Modern Select Insurance Company policy specifically covered Clarke’s motorcycle.  The trial court agreed that the policy language of the exclusion clearly and unambiguously excluded coverage.

Upon Clarke’s appeal, the question was the breadth of the MMG’s exclusion of UIM coverage. The Court concluded that the policy had to be read as a whole, interpreting multiple provisions together to construe the meaning of their words. Under these facts, this meant reading the UIM exclusion together with a separate exclusion for uninsured motorists (“UM”) coverage.

The court held that the plain language of MMG’s UIM form excluded coverage only for injuries sustained in vehicles “not insured for this coverage.”  In contrast, the UM provision excluded coverage for injuries sustained in vehicles “not insured under this policy.” Thus, the exclusions contained the UIM and UM coverages used different exclusionary language.

The court determined that if the UM and UIM exclusions were intended to have the same meaning, they would have used the same language. The court concluded that the plain language of MMG’s policy only excluded coverage for vehicles that did not maintain UIM coverage under any policy, not merely for vehicles not insured under MMG’s policy. Fortuitously,  Clarke’s American Modern Select Insurance policy for his motorcycle had UIM coverage so it was insured for UIM coverage. Thus, Clarke’s motorcycle was insured for UIM coverage (i.e., had “coverage under any policy”) so the UIM exclusion was not triggered.

The court’s holding in Clarke is a reminder to insurance companies to be precise and consistent particularly when drafting exclusionary language.  Any inconsistencies will be magnified when an insurer seeks to deny coverage based on an exclusion.

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