Eastern District of Pennsylvania Recognizes Split in Authority Regarding Whether a Claim-By-Claim Analysis Under the PLCAA is Warranted
Posted: August 18, 2016 Filed under: Firearms Defense | Tags: Firearm Defense, firearms, Negligent Entrustment, Negligent Per Se, PLCAA, Protection of Lawful Commerce in Arms Act Leave a comment
Today, the Eastern District of Pennsylvania addressed the proper interpretation of the Protection of Lawful Commerce in Arms Act and the exceptions contained therein. In Ramos v. Wal-Mart Stores, No. 516-cv-00304, District Judge Joseph Leeson specifically recognized a split in authority regarding whether a claim-by-claim analysis under the PLCAA is warranted. Judge Leeson focused on the Act’s use of the term “action” as opposed to “claim” when assessing whether a plaintiff only needs to meet one of the exceptions to the Act in order to avoid PLCAA immunity. While Judge Leeson did not reach a decision on the issue, his opinion identifies a split in authority and clearly invites future plaintiffs to argue that general negligence or nuisance claims can survive so long as any exception to the Act is met. Read the rest of this entry »
District of New Jersey Denies Summary Judgment Despite the Liquid Spilling Four Minutes Before the Fall
Posted: March 29, 2016 Filed under: General Liability, New Jersey Practice | Tags: constructive notice, General Liability, mode of operation, Prileau, Romeo v. Harrah's, slip and fall Leave a comment
On March 10, 2016, the District of New Jersey addressed the mode of operation doctrine and issues related to constructive notice. In Romeo v. Harrah’s Atlantic City Propco, LLC, 2016 U.S. Dist. LEXIS 31456 (D.N.J. March 10, 2016), the plaintiff fell on a liquid in a common walkway at a casino. A surveillance video showed a patron spilling his beverage on the floor and then four minutes later, the plaintiff slipped. The casino employees also inspect the location where the plaintiff fell every thirty to forty minutes. The defendant moved for summary judgment, arguing that it did not have constructive notice of the dangerous condition.
Second Circuit Upholds Constitutionality of NY and Connecticut’s Assault Weapons Bans
Posted: October 23, 2015 Filed under: Appeals, Firearms Defense | Tags: Appeals, Assault Weapons Ban, SAFE Act, Second Amendment, Second Circuit Leave a commentOn October 19, 2015, the Second Circuit issued an opinion regarding the constitutionality of the SAFE Act/Act Concerning Gun Violence Prevention legislation in New York and Connecticut, upholding the lower court’s decision that a seven round magazine limit was arbitrary but otherwise affirming the constitutionality of the legislation. Read the rest of this entry »
New Jersey Appellate Division Holds That a Defendant is Only Required to Produce Surveillance Evidence After the Plaintiff Has Been Deposed
Posted: September 8, 2015 Filed under: Appeals, General Liability, New Jersey Practice | Tags: Depositions, Discoverability, Impeachment Evidence, New Jersey Appellate Division, Plaintiff, Surveillance Evidence, Work Product Doctrine Leave a commentOn September 3, 2015, the New Jersey Appellate Division reiterated the notion that trial courts should take a balanced approach when it comes to the discoverability of surveillance evidence obtained for purposes of litigation.
In Mernick v. McCutchen, the Appellate Division was tasked with assessing whether surveillance videos of a plaintiff were protected from discovery due to the work product doctrine. The plaintiff was injured in a car accident, and after the plaintiff filed her lawsuit, the defendants took surveillance videos of the purportedly injured plaintiff. In their discovery responses, the defendants acknowledged that they possessed the surveillance videos but refused to produce the videos until after the plaintiff had been deposed. As a result, the plaintiff’s counsel refused to produce his client for deposition until the videos were provided. Read the rest of this entry »
Bronx County Judge Dismisses Sleeping Fan’s Defamation Lawsuit Against ESPN and Yankees
Posted: September 1, 2015 Filed under: Commercial Litigation, General Liability, New York Practice | Tags: Andrew Rector, Bronx County Supreme Court, Defamation, Intentional Infliction of Emotional Distress, Yankees Leave a comment
Everyone should remember the story of Andrew Rector, the fan who was shown sleeping on camera during the Yankee-Red Sox Sunday night game on ESPN in April 2014, and subsequently sued everyone (Major League Baseball, ESPN New York, the Yankees, Dan Shulman, and John Kruk) for defamation and intentional infliction of emotional distress. As previously noted, Mr. Rector’s lawsuit did not appear to be legally viable because none of the comments made by the announcers (Shulman and Kruk) were extreme and outrageous and because many of the alleged defamatory statements originated from third-parties (on various websites, blogs, etc.).
On August 20, 2015, Justice Julia I. Rodriguez in the Bronx County Supreme Court granted the defendants’ motions and dismissed Plaintiff’s complaint in its entirety. A copy of the decision can be found here. Read the rest of this entry »
New Class Action Lawsuit Alleges That Keyless Ignition is “Dangerous and Defective”
Posted: August 27, 2015 Filed under: Commercial Litigation, Product Liability | Tags: Class action, Keyless ignition Leave a comment
According to Edmunds.com, over seventy-two percent of the cars and trucks sold during 2014 came equipped with a push button ignition switch (either as a standard feature or an option). The keyless ignition system allows a driver to start and stop a car by pressing a button while an electronic key fob is in the vicinity of the vehicle.
Aside from freeing up space in an automobile and providing additional convenience, the keyless ignition systems are considered to have additional advantages over conventional ignition switch with a key. Recent recalls by General Motors and injury claims have demonstrated that keys can be jostled out of position (for example, due to the weight of other objects on the key chain or a driver inadvertently hitting the key while shifting), which may result in the engine shutting off. Presumably, a keyless ignition would alleviate any concerns about unintentionally turning off a car. Read the rest of this entry »
NJ Appellate Division: Charitable Immunity Unavailable When a Plaintiff is on Premises as an Employee of a Third Party
Posted: August 26, 2015 Filed under: Church and School Liability, General Liability, New Jersey Practice | Tags: Charitable Immunity Act, Charity, Kostera v. Bacharach, New Jersey Appellate Division Leave a commentThe New Jersey Appellate Division affirmed a trial court’s ruling that a community college employee who was injured in a slip-and-fall at a nonprofit rehabilitation facility where she taught classes to nurses was not a beneficiary of the clinic’s charity and could not rely on the Charitable Immunity Act for a defense. In Kostera v. Bacharach Institute for Rehabilitation, Dkt. No. A-1991-13T4 (N.J. App. Div. Aug 6, 2015), the Appellate Division also affirmed the $4 million jury award. Read the rest of this entry »
New York Court Applies Doctrine of Estoppel Against Inconsistent Positions and C.P.L.R. Section 105(u) to Dismiss Civil Lawsuit Against a City Contractor
Posted: July 20, 2015 Filed under: Construction, General Liability, New York Practice | Tags: CPLR 105(u), doctrine of estoppel against inconsistent positions, Estoppel, judicial admission, New York Courts, Summary Judgment Leave a commentPisciotti Malsch recently secured summary judgment for its client, a construction company, based upon the doctrine of estoppel against inconsistent positions and C.P.L.R. § 105(u).
Plaintiff, a passenger in a car, brought suit against the City of New York and its contractor due to a one-car accident allegedly caused by the contractor’s negligent work in a construction zone. Through investigation, it was discovered that Plaintiff had previously brought suit against the driver of the automobile and in a Verified Complaint, the plaintiff had alleged that “the aforesaid motor vehicle collision was caused solely by the negligence of the [driver] in the ownership, management, operation, maintenance, and/or control of the motor vehicle.” This lawsuit was settled for the full policy limits ($25,000). Read the rest of this entry »
Table Saw Manufacturer’s Failure to Include Automatic Guard is Not a Design Defect Under New York Law
Posted: July 10, 2015 Filed under: Appeals, New York Practice, Product Liability | Tags: Alternative Design, Automatic Safety, Blade Guard, Interlock, Product Liability, Risk Utility Analysis, Table Saw Leave a commentOn July 8, 2015, New York’s Second Department held that a design defect claim cannot be based upon a table saw manufacturer’s failure to include an automatic guard.
In Chavez v. Delta International Machinery Corp., 2014-05235, 2015 N.Y. App. Div. LEXIS 5769 (N.Y. App. Div. [2d Dep’t] July 8, 2015), the trial court denied the branch of the defendant’s motion for summary that sought to dismiss all claims based upon allegations that a table saw was defective for not including an automatic safety device – an interlock device that would prevent the saw from operating unless the blade guard was properly in place. Read the rest of this entry »
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