Dennis Wade, a member of the planning committee for the Federal Bar Association Art Law & Litigation Conference, served as a moderator at a day long CLE program on February 7, 2019 at the National Arts Club. The program addressed cutting edge topics across the spectrum of art law, litigation and copyright issues in the digital age. For more information on the program’s substance, please call or email Dennis at ">.
Category Archives: Of Interest
Plaintiff’s Suit against Golf Course Not Up to Par (NJ)
Plaintiff, a New Jersey resident, visited Greenbrier golf course in West Virginia after seeing advertisements during golf events broadcast on national network television and in nationally circulated golf magazines. While staying at Greenbrier, plaintiff slipped and fell on the golf course, suffering significant injuries. He treated for his injuries in New Jersey and New York City.
Plaintiff sued Greenbrier in New Jersey, and Greenbrier subsequently moved to dismiss based on lack of jurisdiction. During discovery, Greenbrier asserted it had no direct advertisements on any New Jersey television stations or in any New Jersey magazines. Its advertisements were limited to nationally televised media sources, national golf magazines, and social media pages. Greenbrier’s only direct contact with New Jersey was through letters and e-mails sent to New Jersey residents who had previously stayed at Greenbrier.
Following discovery exchange, Greenbrier renewed its motion to dismiss for lack of jurisdiction in New Jersey. The trial court, upon reviewing Greenbrier’s position, granted the motion and dismissed plaintiff’s claim because Greenbrier did not have any direct contact with New Jersey, and there was no evidence of the minimum contacts required from Greenbrier to permit New Jersey Courts to exercise jurisdiction over the golf course located in West Virginia.
Plaintiff filed a motion for reconsideration, arguing general jurisdiction, rather than specific jurisdiction, permitted their claims against Greenbrier in New Jersey courts. Even with the change in plaintiff’s legal position, Delgatto v. Greenbrier that general jurisdiction required systematic and continuous activity in New Jersey, and plaintiff failed to demonstrate such activity. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions.
Conflicting Testimony in Case Involving an Infant Warrants Denial of Summary Judgment (NY)
An infant plaintiff was injured when she fell from a chairlift at Catamount Ski Area in Hillsdale, New York. Unsurprisingly, there was conflicting testimony regarding how the accident occurred.
Many of the relevant facts are not in dispute. The infant plaintiff was four-years-old at the time of her accident. Plaintiff began taking weekly lessons with the Catamount Mountain Cats program in January 2013 and was being instructed by Sean Suydam. At that point, Suydam had been working as an instructor at Catamount for approximately four years. Suydam described the infant plaintiff as an above-average skier. Before the accident, the infant plaintiff had made two or three runs down the bunny hill before proceeding to a quad chairlift (the “lift”), which she ultimately fell from.
In Laura V v. Catamount Development Corporation, the Appellate Division, First Department affirmed a lower court decision by deeming conflicting testimony as to how an accident occurred sufficient to preclude granting Catamount’s motion for summary judgment and finding that defendants failed to prove that the doctrine of assumption of the risk applied in this case.
When she got on the lift, the infant plaintiff was accompanied by Suydam and two other young students. Sudyam got all the students in place and the chair lift began to rise. Based upon the testimony, the infant either spontaneously propelled herself forward or was pushed. Infant plaintiff believed that ‘someone like scooted by accident and then pushed me off, but not like pushed on purpose. They just scooted a bit and I just slid off under the bar.’ Suydam tried to grab the infant plaintiff, but was unable to get a good grip. Suydam was still holding the infant plaintiff for another thirty seconds before she fell 25 feet into the snow below. As a result of her fall, plaintiff sustained a broken leg.
Defendants argued that they were entitled to summary judgment because plaintiff’s fall was “an unfortunate accident”, defendants “satisfied [their] duty to make the conditions as safe as they appeared to be” and “[p]laintiff assumed the obvious risk of falling from the lift.” Further, defendants maintained that “[p]laintiff’s accident occurred only because she hopped forward in the seat just as Suydam had his arm raised to lower the safety bar.” Defendants also contended that there is no evidence that Suydam’s instruction was improper.
Plaintiffs successfully disputed Suydam’s claim as to when he allegedly lowered the bar, and further claimed that the lift operators delayed in stopping the lift, which also contributed to the accident. Plaintiffs also contended that whether the infant plaintiff could assume the risk of riding the lift is a question of fact at best, and argued that it is inapplicable to a four-year-old child.
Conflicting testimony in cases involving infants is a given. Moreover the courts appear to bend over backwards to allow infant cases to proceed to a jury.
Thanks to Paul Vitale for his contribution to this post.
When is a Win Not a Win? (NY)
In Mitchell v Quincy Amusements Inc. (2019 NY Slip Op 00430), plaintiff sought to recover for personal injuries sustained from a slip and fall on popcorn oil present on the floor of one of the auditoriums in defendant’s multiplex theatre. Plaintiff did not realize she was injured until the movie was over and she realized she was having difficulties rising from her seat.
After the trial was completed, the jury rendered a verdict finding that the defendant was negligent, but that such negligence was not a substantial factor in causing the plaintiff’s injuries. The plaintiff then moved to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. The Supreme Court denied the motion and thereafter entered judgment in favor of the defendant and against the plaintiff dismissing the complaint. The plaintiff appealed from the judgment.
The Second Department Appellate Division found that the issues of negligence and proximate cause were so inextricably interwoven, that the jury’s finding that the defendant was negligent, but that such negligence was not a substantial factor in causing the plaintiff’s injuries, could not have been reached on a fair interpretation of the evidence. The plaintiff, and her friend who accompanied her on the day of the accident, both consistently testified that the plaintiff slipped and fell on an oily substance on the floor of the auditorium, and the defendants failed to submit any evidence to refute this testimony. Accordingly, the plaintiff’s motion to set aside the jury verdict should have been granted.
The case illustrates that certain fact patters almost require appellate practice before either side can discuss resolution.
Thanks to Meg Adamczak for her contribution to this post.
Lowering the Bar? (NY)
The Appellate Division, Second Department, recently took up the issue of whether a plaintiff involved in a motor vehicle accident may recover damages for lost earnings despite failure to prove a serious injury as defined by Insurance Law § 5102(d).
In Gore v. Cardany 2018 NY Slip Op 08632 (2d Dep’t 2018), plaintiff was rear-ended by the defendant while stopped at a red light. Plaintiff then commenced an action to recover damages for personal injuries allegedly sustained to his neck, back and left shoulder. At the time of the accident, plaintiff was in the course of his employment as a bus driver, and sought additional damages for past and future lost earnings in light of his inability to work following the accident. Plaintiff was granted summary judgment on the issue of liability and the case proceeded to trial on the issue of damages.
A Westchester County jury found that plaintiff’s injuries did not meet any of the threshold categories under Insurance Law § 5102(d), awarding him nothing at all for pain and suffering. Despite concluding that plaintiff had not sustained a serious injury, however, the jury awarded plaintiff for past lost earnings in the amount of $156,000 and future lost earnings in the amount of $750,000 (over 15 years.) Defendant thereafter moved to set aside this portion of the jury verdict. The trial court agreed, setting aside the verdict as to all damages.
On appeal, the Appellate Division reinstated the award for past lost earnings in the sum of $156,000, finding that plaintiff had established these damages with “reasonable certainty,” and as such, plaintiff had satisfied his burden of proof (see Lodato v. Greyhawk N. Am., LLC, 39 AD3d 494, 495; Harris V City Of New York, 2 AD3d 782, 784). Relying on provisions of the Insurance Law, the Court held that “a plaintiff is not required to prove that he or she sustained a serious injury as defined by Insurance Law §5102(d) in order to recover for economic loss exceeding $50,000 incurred as a result of a motor vehicle accident (see Insurance Law § 5104[a].” (Internal citations omitted). Thus, plaintiff’s own testimony that he had been unable to work because of the injuries sustained in the accident, together with submission of his W-2 forms, was sufficient to meet his burden of proof. By contrast, plaintiff failed to provide any competent medical evidence that he would be unable to perform any work in the future, and therefore failed to prove his damages for future lost earnings with the required reasonable certainty. Nevertheless, plaintiff was permitted to recover $156,000 for lost earnings despite failure to prove that he had sustained a serious injury under the Insurance Law.
Thanks to Tyler Rossworn for his contribution to this post.
Geico—15 Minutes Could Save You 15% or More on Car Insurance (PA)
On January 23, 2019, the Pennsylvania Supreme Court overturned numerous published decisions consisting of decades of precedent deciding that the “household vehicle exclusion” found in many auto policies. The Gallagher v. Geico Indemnity Company decision shows how the Court reasoned that the “household vehicle exclusion” conflicted with the UM/UIM stacking provision codified in the Pennsylvania Motor Vehicle Financial Responsibility Law (“PMVFRL”).
Gallagher was driving his motorcycle when the driver of a truck ran a stop sign. The truck crashed into Gallagher and he sustained serious injuries as a result. Importantly, Gallagher had two separate Geico auto policies. The first policy insured only the motorcycle and provided $50,000 in UIM coverage. The second Geico policy provided coverage for two of Gallagher’s other vehicles. It contained limits of $100,000 UIM coverage for each vehicle. In their analysis, the Court relied on the fact that Gallagher did not sign a specific waiver form to reject stacking. Instead, Gallagher actually paid higher premiums for stacked UIM coverage under the second Geico policy. Gallagher eventually settled the claim against the truck driver. However, he did not receive sufficient funds with respect to the serious nature of his injuries. Consequently, Gallagher sought $250,000 in UIM coverage from Geico.
Geico tendered its entire UIM policy limit of $50,000 pursuant to its first motorcycle policy but denied coverage with respect to its second auto policy as it contained a “household vehicle exclusion.” Geico filed a MSJ, citing applicable precedent which argued that Courts consistently enforce the exclusion. Upon application to the Supreme Court of Pennsylvania, Gallagher argued that the household vehicle exclusion acted as a de facto waiver of stacking – which, pursuant to the PMVFRL, required a specific waiver form to be enforceable. Gallagher further argued – and the Court emphasized – that he specifically paid additional premiums for stacked coverage. The Court agreed that the household vehicle exclusion was a de facto waiver of stacking and thus violated provisions of the PMVFRL.
However, the Court did provide several other statements that appear to be glimpses of possible trends with respect to the “household vehicle exclusion”. First, Geico provided all relevant policies. The Court did admit this may change insurance underwriting practices. However, it emphasized here that Geico possessed all information regarding his insurance policies and collected higher premiums from him for stacked coverage. Second, the Court, in a footnote, argued that any insurer could likewise be on notice of multiple policies, even from different carriers. The Court stated “[f]or example, when multiple policies or insurers are involved, an insurer can require disclosure of all household vehicles and policies as part of its application process.” Ostensibly, while the Court states multiple times that this case is unique as Geico provided all policies, this footnote is an ominous sign of changes to come.
Thanks to Matthew Care for his contribution to this post.
General Notice of Frequent Occurrence Not Sufficient to Show Actual Notice of Current Transitory Spill (PA)
In Karten v. Shop Rite the plaintiff claimed that she slipped and fell on some debris that was dark, slippery and smelled of rotten banana on the main walkway of the parking lot as she was leaving a Shop Rite grocery store. The plaintiff sustained injuries to her knee, ankle and lower back, and filed suit for negligent maintenance of the premises. Defendants moved for summary judgment, arguing that the store had no actual or constructive notice of the spill.
In opposition to the motion, the plaintiff argued that the substance that caused her to fall constituted a dangerous condition of lasting duration. Plaintiff further argued that Shop Rite had actual notice of a dangerous condition because it had received general complaints regarding debris near the parking lot garbage cans. However, the Court found that general notice of a frequent occurrence was not sufficient to show actual notice of a current transitory spill. The Court, in concluding that the substance amounted to a transitory spill, found no evidence of actual notice to the store of the banana’s presence, and concluded that a jury would have to resort to improper speculation.
In the alternative, plaintiff complained that Shop Rite failed to produce information regarding a store employee and the surveillance film of the incidence. However, the Court found that the plaintiff manufactured these issues solely for the purpose of opposing summary judgment, as they were never pursued by the plaintiff within the discovery period. Further, the Court found that the allegations in plaintiff’s opposition to summary judgment contradicted her prior pleadings and deposition testimony.
In granting summary judgment, the Court found that Pennsylvania law did not support the presumption that damaged debris served as sufficient circumstantial proof for the duration of a transitory spill, and concluded that the plaintiff failed to meet her burden of establishing constructive notice. Therefore, summary judgment was granted in favor of Shop Rite.
Thanks to Alexandra Perry for her contribution to this post.
A Potential (and Rare) Loss for a New England Patriot
New England Patriots defensive end, Deatrich Wise, Jr., filed suit against Lloyd’s of London for breach of his policy, which was designed to protect him from any loss of value in his capacity as an up-and-coming professional football player. Wise is claiming he is owed $600,000 after missing time due to injuries sustained on the field.
Lloyd’s contends that Wise Jr. never missed any full games, therefore, he is not eligible for coverage. The basis for Wise’s claim is that due to the games he missed in his final season of college, as a result of hand and shoulder injuries, he signed a $3 million dollar contract with Patriots — substantially less then he would have made if he had not been injured in his final season in college.
Wise claims Lloyd’s is obligated to make up the difference between the $3 million and the $3.6 million trigger line in the policy.
Lloyd’s moved for summary judgment claiming that Wise misinterpreted the policy to account for how many plays he missed in his final college season. Lloyd’s claims that the amount of plays Wise Jr. missed is of no moment as the policy is only triggered by missed games and Wise Jr. did not miss a single game in his final season in college. Wise Jr’s attorney stated that Wise missed 312 defensive plays during the season, a sum he asserted amounts to “5.2 games.”
Lloyd’s policy requires that the insured “be unable to participate for at least 28 days and in three regular and/or postseason games” to be eligible for coverage. Therefore, Lloyd’s claims that Wise Jr. did not satisfy the requirements under the policy, therefore Lloyd’s did not breach the contract.
The suit alleges that Wise Jr’s pre-season accolades projected him to be a first round draft pick and due to the injuries he dropped out of the first round to fourth round and lost a significant amount of money. We suspect Wise Jr. has an uphill battle to survive a motion to dismiss. Perhaps he can take solace in his championship ring for SB LIII. Thanks to Jon Avolio for his contribution to this post. Please email Brian Gibbons with any questions.
Plaintiff’s Death, before his Deposition, also Fatal to His Estate’s Cause of Action (NY)
The death of a plaintiff can be devastating to that decedent’s cause of action — especially where the decedent dies before being deposed, as in Thompson-Shepard v. Lido Hall Condominiums. This 2019 First Department decision granted defendant’s motion for summary judgment because there was no way for the cause of plaintiff’s un-witnessed accident to be surmised.
Decedent was allegedly injured when he fell on the stairs at defendant’s premises. His pre-deposition death, unrelated to the unwitnessed fall, precluded plaintiff’s estate from asserting a conclusive the cause of the accident.
Plaintiff attempted to remedy this defect by submitting an expert affidavit claiming that the irregular and excessive riser heights coupled with plaintiff’s testimony that she saw decedent’s leg lodged in a riser showed that the defective riser heights caused decedent’s accident. The court found that the expert failed to raise an issue of fact as there was no witness to link the claimed defect to decedent’s accident as there was no sworn statement or testimony by decedent claiming he fell due to riser height.
It is crucial to remember in trip and fall cases that a plaintiff’s cause of action hinges on the cause of the accident. When plaintiffs are unable to conclusively determine what caused them to fall, there is no way for defendants to be on notice. As a practice point, locking in inconclusive testimony as to proximate cause is fatal to a plaintiff’s negligence action. Thanks to Mehreen Hayat for her contribution to this post. Please email Brian Gibbons with any questions.
WCM Is Pleased to Announce That Vivian Turetsky Has Been Promoted to Counsel
With effect as of January 1, 2019, WCM is pleased to announce that Vivian Turetsky has been promoted to the rank of counsel. Vivian focuses her practice on insurance coverage litigation on behalf of general liability, fine art, and jeweler’s block insurers in both state and federal courts in New York and New Jersey. Vivian joined WCM after practicing commercial litigation at both large and boutique litigation firms.