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Delay Defeats Arbitration: Nevada High Court Finds 17 Months Too Long
April 20, 2026
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Christopher Flanagan to Speak at CLM Event at Boston’s Museum of Science
When: September 9, 2011
Conference: Council of Litigation Management (CLM)
People: Christopher P. Flanagan
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Events
Hurwitz, Trembach, and Lubin Secure Complete Dismissal for Global REIT in Wrongful Death Toxic Exposure Action
Daniel S. Hurwitz (Partner-Los Angeles, CA), Anatolii Trembach (Associate-Los Angeles, CA), and Rory L. Lubin (Partner-White Plains, NY) obtained a complete victory in the Superior Court of California on behalf of Wilson Elser's client, a global real estate investment trust. The plaintiffs in this case sued our client, the alleged landlord of an industrial property where the decedent had worked, along with other defendants. The plaintiffs claimed that the decedent's death was caused by exposure to toxic chemicals at a facility operated by the client’s tenant, asserting wrongful death, strict product liability, and survival causes of action.
Dan and Anatolii prevailed on two successive demurrers, persuading the court that the claims against the client were barred by the statute of limitations and that the relation-back doctrine under Code of Civil Procedure § 474 did not apply. The court agreed and dismissed the action against the client. When the plaintiffs moved for reconsideration, we filed another brief demonstrating that the motion presented no new facts, circumstances, or law warranting reconsideration under Code of Civil Procedure § 1008. After reviewing our brief, the plaintiffs waved the white flag and withdrew the motion in its entirety, resulting in complete and final dismissal of the action at the pleadings stage and sparing the client the costs and risks associated with the discovery process. The case against the remaining defendants continues.
Daniel S. Hurwitz, Anatolii Trembach and Rory L. Lubin
Atlanta Team Secures Settlement at a Fraction of Plaintiff's Eight-figure Demand
Michael Manfredi (Partner–Atlanta, GA), Kristina Thompson (Of Counsel–Atlanta, GA), and Jennifer Sands (Associate–Atlanta, GA) secured a significant defense outcome in a premises liability case arising from a shooting on the defendants' apartment-style residential property. The plaintiff sustained gunshot wounds to his lower extremities and faces a potential future amputation. His initial demand was for $30 million, and he filed suit against our insured clients in Gwinnett County State Court. The Atlanta defense team vigorously defended the case through discovery and contentious motions practice, maintaining that the plaintiff's injuries resulted from unforeseeable third-party criminal acts for which the property owner and management are not liable. Despite substantial resistance from opposing counsel, the team successfully obtained the underlying criminal investigative files, which revealed numerous material inconsistencies – including lies and omissions - between the plaintiff's statements to law enforcement and his civil discovery responses and testimony. Based on these findings, the team filed a Motion for Sanctions for Discovery Abuses seeking dismissal of the Complaint. While the motion was pending, plaintiff's counsel reduced the demand from $30 million to $3 million, which was one-tenth of the initial demand. The case ultimately resolved for an amount below that reduced figure.
Michael P. Manfredi, Kristina E. Thompson and Jennifer S. Sands
Lee and Rivera Prevail on Summary Judgment for Ski Resort in Wrongful Death Action
Gregory Lee (Partner-Los Angeles, CA) and Danielle Rivera (Associate-Los Angeles, CA) secured summary judgment on behalf of a ski resort in a high-exposure wrongful death lawsuit arising from a fatal chairlift accident. The decedent, an expert snowboarder, was riding alone on a chairlift when he fell 40 feet to the ground below and died from blunt force trauma. The subject chairlift was the only one at the resort not equipped with a restraint bar. The plaintiffs alleged that the fall resulted from the ski resort's grossly negligent installation, maintenance, and operation of the chairlift.
Greg and Danielle moved for summary judgment based on the defense of express assumption of risk. In opposing the motion, the plaintiffs challenged the admissibility and enforceability of the decedent’s liability releases. Additionally, their expert testified that industry standards required the chairlift to be equipped with a restraint bar, and that the installation would have prevented the decedent from falling. The San Bernardino Superior Court agreed with Greg and Danielle, finding that one of the decedent’s liability releases was admissible and enforceable and that the testimony of the plaintiffs’ expert was insufficient to overcome the defense of express assumption of risk.
Gregory K. Lee and Danielle C. Rivera
Niederer and Miller Prevail in U.S. District Court in Discrimination Matter
Through persistent and strategic motion practice, Eric Niederer (Partner-Stamford, CT) and Casey Miller (Associate-Stamford, CT) obtained a complete and final resolution in a matter before the U.S. District Court, District of Connecticut.
Plaintiff alleged sex, race, color, and disability discrimination against our insured, a nonprofit domestic violence services organization, and other defendants.
Over the course of the litigation, Plaintiff engaged in a pattern of noncompliance with the Court's orders and the requirements of the Federal Rules of Civil Procedure. The Court further found that the plaintiff's noncompliance had been both prolonged and willful, extending back to the July 2025 court-ordered deadlines, and that Plaintiff had actively refused to comply with her discovery obligations to any extent.
The dismissal with prejudice eliminated the burden of prolonged and meritless litigation and barred Plaintiff from reasserting these claims in any future proceeding.
Eric W.F. Niederer and Casey C. Miller
Takacs and Rossi Defeat Claims Against Property Owner in Tenant Injury Lawsuit
Michael S. Takacs (Partner-Philadelphia, PA) and Andrew Rossi (Associate-Philadelphia, PA) prevailed on a motion for summary judgment in the Court of Common Pleas, Philadelphia County, Pennsylvania, on behalf of Wilson Elser’s client, a property owner/landlord. The plaintiff, a tenant at the client’s apartment complex, allegedly sustained a forehead laceration, concussion, post-concussion syndrome, and injuries to her neck after striking her forehead on a dumpster’s trunnion bar while taking out her trash. She claimed the trunnion bar, which a truck uses to lift the dumpster during emptying, was a dangerous condition because it “sticks out inconspicuously” and lacked warnings or contrasting paint to make it more visible. The codefendant waste management company supplied and serviced the dumpster under a customer service agreement with our client, retained ownership, and specifically prohibited the client from altering it. The plaintiff, who had lived at the property for more than a year, admitted to using the dumpster at least weekly to dispose of her trash. Michael and Andrew moved for summary judgment, asserting that the client neither owed nor breached a legal duty of care to protect the plaintiff where the alleged condition of the trunnion bar was open, obvious, and readily visible on equipment the client did not own or control. The court entered summary judgment on behalf of the client, dismissing all claims and crossclaims.
Michael S. Takacs and Andrew P. Rossi
Defense Verdict Secured for The Peninsula Beverly Hills After Month-Long Jury Trial
Gary Pancer (Partner-Los Angeles, CA), Kelley Harman (Of Counsel-Los Angeles, CA), and Aria Aghalarpour (Associate-Los Angeles, CA) of Wilson Elser secured a complete defense verdict in Los Angeles County Superior Court, Santa Monica, on behalf of their client, The Peninsula Beverly Hills (the "Hotel"). The verdict followed a three-week-long jury trial, preceded by two weeks of extensive pre-trial motion practice and jury selection. General Counsel for the Hotel's owner, Michael Tenner, was present throughout the entirety of the proceedings.
Plaintiff, a 68-year-old woman, claimed that she ordered a decaffeinated iced tea at the Hotel's Roof Garden restaurant at lunch on January 30, 2021, but was allegedly served caffeinated tea. At trial, the plaintiff attempted to establish liability through testimony from family members who were present at the lunch, as well as a friend who had worked at the Hotel for 17 years. Wilson Elser presented testimony from Hotel leadership, including the former Assistant Director of Food and Beverage, the Hotel Manager, and the Managing Director, establishing clear, reliable beverage service protocols that were followed, including the use of separate containers and visual markers to distinguish decaffeinated beverages.
Plaintiff relied on expert testimony from a physician who opined that caffeine consumption caused plaintiff's cardiac symptoms. We countered with expert analysis by a research cardiologist and electrophysiology expert, who explained that it is medically implausible for a single instance of alleged caffeine consumption to reverse an ablation or cause long-term arrhythmias, and that no physiological basis supports the plaintiff's theory.
After approximately two hours of deliberation, the jury returned a defense verdict, finding The Peninsula Beverly Hills was not negligent. Notably, the jury resolved the case at the first question on the verdict form and never reached the issue of causation. Post-verdict discussions confirmed the jury would have unanimously found for the defense on causation as well. The hotel is pursuing recovery of substantial expert fees and litigation costs in excess of $200,000.
Gary S. Pancer, Kelley E. Harman and Aria A. Aghalarpour
Campos Obtains Terminating Sanctions, Case Dismissed
Victor Campos (Of Counsel-Los Angeles, CA) prevailed on behalf of our client, a national operator of bowling centers, in a case in which we have been involved since November 2021. While Mr. Campos handled the case for the past two years, Carole Buckner (Partner-San Diego, CA) and Andrew Sewell (Of Counsel-Los Angeles, CA) previously worked up the case, enabling this huge team win for the Client. Plaintiff fell in a client-owned bowling alley, breaking her right shoulder and left leg. She underwent surgery to repair both fractures. Years of discovery ensued, including expert discovery. In 2024, the team filed an MSJ, which the Court denied. Subsequently, they continued to aggressively defend the case, pushing for essential discovery from Plaintiff. They filed and won two motions to compel and were awarded sanctions. Plaintiff did not conform to the Court's orders, so they filed a Motion for Contempt and for Terminating Sanctions. The Court granted the Motion for Terminating Sanctions and dismissed the case with prejudice.
Victor M. Campos, Carole J. Buckner and Andrew Sewell
Hanrahan and Choren Persuade Court to Grant Dispositive Motion in Campus Assault Case
Catherine Hanrahan (Partner-Washington, DC) and Pernell Choren (Of Counsel-Washington, DC) obtained dismissal of an eleven-count complaint in the Superior Court of the District of Columbia, on behalf of two entities affiliated with a local university’s student housing operations. The case arose from a horrific sexual assault that occurred on campus in August of 2022. The plaintiffs sued Wilson Elser’s clients, asserting a wide range of claims, including negligent hiring, negligent supervision, negligent retention, vicarious liability, respondeat superior, intentional infliction of emotional distress, failure to provide a safe workplace, negligence per se, breach of bond, loss of consortium, and joint enterprise liability – and sought $1.5 million in damages.
Catherine and Perry filed a comprehensive motion to dismiss, adopting and incorporating three prior motions to dismiss from a predecessor case and crafting detailed arguments demonstrating that the plaintiffs failed to plead any facts establishing that their clients, rather than the staffing company that employed both the victim and the assailant, had any responsibility for hiring, supervising, or controlling the perpetrator. They further established that the staffing company maintained "absolute and exclusive" authority over concierge personnel, and that the plaintiffs themselves had admitted in their prior lawsuit that the assailant was employed and paid by an entirely different entity. In a detailed nine-page order, the Court found Wilson Elser’s arguments persuasive and ruled that all the plaintiffs' claims were barred by collateral estoppel based on the court's prior dismissal order in the related action. Accordingly, the court granted the motion and dismissed all of the plaintiffs’ claims with prejudice.
Catherine A. Hanrahan and Pernell A. Choren
Suarez and Restrepo Secure Full Dismissal for Global Resort Group in Third-Party Liability Case
Tanya Suarez (Partner-Miami) and Michael Restrepo (Associate-Miami, FL) secured a complete dismissal of all claims in the Miami-Dade County Circuit Court on behalf of Wilson Elser’s clients, a global resort group and its resort property located in the Bahamas. This complex third-party action arose from an alleged recreational vehicle accident near the resort’s security gate. The third-party plaintiff alleged negligence claims against our clients, alleging that inadequate roadway lighting contributed to the accident.
Tanya and Michael engaged in extensive motion practice, submitting more than 500 pages of briefing. The team moved to dismiss plaintiff’s claims on multiple grounds, including expiration of the statute of limitations, failure to state a cause of action, and forum non conveniens. After nearly two hours of oral argument, the court granted the motion in full. The court agreed with Tanya and Michael’s arguments and found the statute of limitations issue to be dispositive, ruling that the claims were time-barred and untimely under Florida law, while also considering the Bahamian statute of limitations issues raised in the briefing. In light of this ruling, the court did not reach the remaining arguments, including forum non conveniens, which had previously been raised by the third-party plaintiffs (Florida residents), denied by the trial court, and affirmed on appeal in the original action, before our client’s involvement as a third-party defendant.
Tanya I. Suarez and Michael Restrepo
Campos and Koomson Secure Summary Judgment in High-Exposure Firearm Negligence Case
Gershom “Koby” Koomson Jr. (Associate-Los Angeles, CA) and Victor M. Campos (Of Counsel-Los Angeles, CA) secured summary judgment in Stanislaus County Superior Court, Modesto, California, on behalf of Wilson Elser’s security officer clients. The plaintiff in this matter alleged negligent use of a firearm after being shot during an encounter with our clients. The security officers responded to an alarm call at an elementary/middle school where the plaintiff was unlawfully present. The security officers engaged the plaintiff to stop suspected criminal activity. However, rather than comply, the plaintiff jumped into his vehicle and nearly ran over one of the security officers; he then attempted to run over the other as he fled the scene. Faced with an immediate threat to life, our client discharged his firearm, striking the plaintiff.
Following nearly two years of litigation – including extensive motion practice, jailhouse interviews, and challenging interactions with the plaintiff’s counsel, Koby and Victor successfully refuted the plaintiff’s claims. In particular, they successfully defended against the plaintiff’s arguments for statute of limitations tolling based on COVID-19 emergency orders and capitalized on critical procedural missteps in the plaintiff’s case. As a result, the court granted summary judgment in favor of our clients, defeating the plaintiff’s $3 million demand.
Victor M. Campos and Gershom K. Koomson Jr.
Rigsby, Mooney and Carley Achieve Favorable Jury Award in Especially Difficult Venue
Peder Rigsby (Partner-Portland, OR), Dan Mooney (Partner-Seattle, WA) and John Carley (Of Counsel-Portland, OR) secured a highly favorable jury award on behalf of their client, a large resource recovery company. The trial was held in King County, WA, a notoriously difficult venue for defendants recently included on the “Judicial Hellhole Top 10” list. This was an admitted liability case that was vigorously contested.
The client’s garbage truck driver backed into the plaintiff’s vehicle, causing it minor damage. Plaintiff was standing in the truck bed and either jumped or fell out. Plaintiff claimed numerous catastrophic injuries, including multiple surgeries and a concussion diagnosed nearly five years after the accident. The alleged economic damages were $1.2 million. During jury selection, Plaintiff’s counsel anchored at $30 million. In closing, Plaintiff asked for $11.8 million. The defense strategy focused on causation and the plaintiff’s credibility, which included presenting numerous experts, a private investigator, and hours of video surveillance showing the plaintiff engaging in activities that he claimed he could not perform. Following a three-week trial, the jury returned a verdict of $500,000 or $100,000 less than our last offer.
Peder A. Rigsby, Daniel C. Mooney and John Carley
Ross & Zink Secure Pre-Answer Dismissal of 106-Page Complaint in Federal Court
Mathew Ross (Partner-White Plains, NY) and Lauren Zink (Partner-New York, NY) obtained a pre-answer dismissal of a 106-page complaint in the U.S. District Court, Southern District of New York, in which the plaintiff alleged a litany of federal and New York state claims against Wilson Elser’s clients, a psychology group, and its psychologist employee, along with various other defendants. Allegations included RICO violations, deprivation of procedural due process, equal protection violations, conspiracy to interfere with civil rights, fraud/deceit, intentional/negligent infliction of emotional distress, professional malpractice, negligent hiring, retention, and supervision, and spoliation of evidence.
In this federal matter, the pro se plaintiff – an attorney –brought sweeping claims arising out of pending New York Family Court custody proceedings, alleging that a broad group of defendants, including our clients, the sitting Family Court judge, the plaintiff’s ex-wife and her counsel, court-appointed representatives, government agencies, and others engaged in a years-long scheme to violate his constitutional rights and interfere with his relationship with his daughter. As to our clients, the plaintiff alleged negligent hiring and supervision, claiming the psychology group’s employee, who was hired by the plaintiff and his wife together for a period between 2019 and 2020 to treat their daughter, falsified reports and records, triggering an investigation that led to the suspension of his custodial rights.
Prior to answering, Mat and Lauren filed a pre-answer motion seeking to dismiss the entirety of the plaintiff’s complaint pursuant to Fed. R. Civ. P. 12(b)(6), arguing for dismissal on multiple grounds. They maintained that the plaintiff’s federal claims against the client were barred pursuant to the Younger abstention and Rooker-Feldman doctrines. They further argued that the plaintiff’s New York State claims were subject to dismissal because the complaint failed to state a claim upon which relief could be granted, coupled with the fact that the plaintiff’s New York State claims were time-barred pursuant to the respective statute of limitations.
In a 30-page decision, the court granted Mat and Lauren’s motion in full, agreeing that the Younger abstention doctrine barred the plaintiff’s federal claims because they interfered with ongoing state custody proceedings, and that the plaintiff’s conclusory allegations of bad faith were insufficient to overcome that bar. The court also found the claims precluded by the Rooker-Feldman doctrine, which prohibits federal review of state court custody determinations. With respect to the plaintiff’s RICO and Section 1985(3) claims, the court dismissed these claims on the basis that they were conclusory, that the plaintiff did not adequately allege that any of the defendants are state actors, and that the plaintiff otherwise failed to sufficiently plead facts showing a plausible entitlement to relief. Finally, the judge held that the court declined to exercise supplemental jurisdiction over the plaintiff’s state law claims, given that the anchoring federal claims were dismissed. As such, the judge directed the Clerk to enter judgment dismissing the action for lack of subject matter jurisdiction.
Mathew P. Ross and Lauren M. Zink
Young Secures Summary Judgment Using Video Evidence to Defeat Assault Claims
Rebecca Young (Partner-Birmingham, AL) secured summary judgment for an entertainment venue client in the Circuit Court of Jefferson County, Alabama. The plaintiff alleged she was brutally assaulted by the venue’s security staff while being wrongfully detained in a stairwell. Rebecca moved for summary judgment based on insufficient evidence to support the plaintiff’s allegations. The plaintiff argued that the claims should go before a jury because her testimony alone about what occurred was sufficient to create a genuine issue of material fact, particularly in the absence of video footage from the alleged location of the assault disputing her version of events. Rebecca countered that extensive video footage from before and after the alleged assault contradicted the plaintiff’s account. She prepared a detailed, minute-by-minute demonstrative timeline for the court that compared the footage to the plaintiff’s testimony, showing that the plaintiff’s version of the facts was impossible. Relying on Alabama law, which provides that when opposing parties tell two different stories, and one is blatantly contradicted by the record such that no reasonable jury could believe it, the court should not adopt that version of the facts in ruling on a motion for summary judgment. The court agreed and granted summary judgment on all claims.
Rebecca A. Young
Jacobs Earns Significant Defense Win for a Large Restaurant Chain
Natalie Jacobs (Associate-McLean) prevailed on behalf of her client, a national chain restaurant, in an unusually “messy” matter in which local homeowners sued our client, another restaurant and Fairfax County alleging grease from the restaurants caused sewer lines to become congested to such an extent that their basement flooded with sewage. Natalie demurred on behalf of our client arguing that the company did not owe a legal duty to downstream property owners. The court sustained our demurrer, but granted plaintiff leave to amend. Plaintiff filed an amended complaint, naming additional restaurants as defendants. Again, we demurred, and again, the court sustained with leave to amend.
Plaintiff filed a second amended complaint before eventually nonsuiting the restaurant defendants, including our client. The court later sustained the Fairfax County demurrer, which dismissed the case with prejudice. Following the nonsuit, plaintiff refiled the claims in a second suit against some of the previously nonsuited restaurants. Notably, plaintiff failed to include our client in the new suit, and plaintiff’s time to proceed against them had expired. A hard-fought win for Natalie anything but sub-par.
Natalie B. Jacobs
Williams and Yang Obtain Summary Judgement on Behalf of Regional Bank
Ryan Williams (Partner-Denver) and Michelle Yang (Associate-Denver) obtained summary judgment on behalf of their client, a regional bank with branches throughout Colorado, in the Denver County District Court. The presiding judge granted the motion, dismissing all vicarious liability claims against the bank.
The case arose from an August 2023 motor vehicle collision in which a bank employee struck the plaintiff while driving home from a work-related banking conference. The plaintiff alleged that our client was vicariously liable under respondeat superior, arguing the employee was acting within the course and scope of her employment at the time of the accident. Ryan and Michelle successfully argued that Colorado's well-established going-and-coming rule barred the claim, demonstrating that the employee's commute home – regardless of whether the employee had attended a work event earlier that day – did not further the bank's business purpose. The Court agreed, finding no genuine issue of material fact and ruling that the doctrine of respondeat superior was inapplicable as a matter of law.
Ryan A. Williams and Michelle Yang
Motta and Rose Secure Dismissal with Prejudice in Casino Negligence Case
Denise Motta (Of Counsel-Louisville) and Estee Rose (Associate-Louisville) obtained dismissal for Wilson Elser’s property owner client in a negligence action arising from injuries allegedly caused by a drunk patron at a casino. The casino was operated by a separate corporate entity, which the plaintiff did not name in the lawsuit, instead suing our client. Denise and Estee moved to dismiss, arguing that the client was not a proper party and, therefore, the complaint failed to state a claim upon which relief could be granted. The court agreed and dismissed the claim with prejudice.
Denise M. Motta and Estee Rose
Mebuke and Goldner Win Summary Judgment in Cook County Bus Collision Case
Keti Mebuke (Associate-Chicago) and Anthony Goldner (Partner-Chicago) obtained summary judgment in the Circuit Court of Cook County, IL, on behalf of Wilson Elser’s bus company client and its driver. This case arose from a collision between two buses in which the plaintiff was a passenger on our client’s bus at the time of the accident. During the plaintiff’s deposition, she admitted that she did not believe our driver did anything wrong to cause the accident. She later acknowledged that she did not know precisely how the collision occurred.
Relying on these admissions and the absence of other supporting evidence, Keti and Anthony moved for summary judgment, arguing that the plaintiff could not establish either a breach of duty or proximate cause attributable to our driver. In opposition, the plaintiff contended that video footage of the incident allegedly showed our client’s bus “angled out” of its lane, thereby creating a question of fact regarding negligence. The court rejected the plaintiff’s argument and agreed with Wilson Elser’s position. Citing First District authority referenced in our motion, the court held that even if the bus appeared slightly “angled out” of its lane, that fact alone was insufficient to create a triable issue of fact. Based on the lack of evidence supporting negligence or causation, the court granted Keti and Anthony’s motion for summary judgment and dismissed the claims against our clients.
Anthony M. Goldner and Keti Mebuke
Dalena Wins Summary Judgment Victory on Contractual Defense and Indemnification for Property Owner
Anne M. Dalena (Of Counsel-Madison, NJ) obtained summary judgment in the Superior Court of New Jersey Law Division, Essex County, on behalf of a property owner client. The plaintiff in this personal injury action, a tenant in an apartment building owned by our client, allegedly slipped and fell on ice in the parking lot, sustaining a trimalleolar ankle fracture. After the plaintiff amended the complaint to add the snow removal contractor, Anne tendered the property owner’s defense to the contractor pursuant to the parties’ agreement requiring the contractor to defend, indemnify, and name the property owner as an additional insured. When the contractor failed to respond to the tender despite repeated follow-ups, Anne moved for summary judgment on the property owner’s crossclaims seeking defense, indemnification, and reimbursement of attorneys’ fees and costs. The Court granted Wilson Elser’s motion in full, holding that the contractor was contractually obligated to defend and indemnify the property owner and to reimburse our client for defense fees and costs incurred from the date of tender.
Anne M. Dalena
Takacs Crafts Persuasive Argument, Obtains Summary Judgement
Michael S. Takacs (Partner-Philadelphia) secured a complete dismissal of a commercial property owner client on a contested Motion for Summary Judgment. The ruling proves once again that while difficult, obtaining summary judgment in plaintiff-friendly Philadelphia County, Pennsylvania, is not impossible. Under the facts presented, the plaintiff, a schoolteacher who often frequented a delicatessen in the client’s building, parked her vehicle in a “no parking zone” outside the building on the day in question. When she left the delicatessen, rather than walking on the sidewalk to reach her vehicle, she took a shortcut across a “wooden landscape box” comprised of four railroad ties formed into a square and enclosing a street sign. When she stepped on one of the wood ties, her foot slipped and she suffered a ruptured quadriceps tendon requiring surgery.
Takacs moved for summary judgment asserting that the client neither owed nor breached a legal duty of care to protect the plaintiff from the alleged dangerous condition and therefore could not set forth a prima facie case of negligence. Relying on existing case law involving slip and falls on snow and ice emanating from the Pennsylvania Superior Court and other lower court cases that followed it, Takacs crafted a persuasive argument that the underlying basis for the courts’ decisions in those cases – that no duty was owed where a plaintiff voluntarily chose a path of travel not meant to be traversed out of convenience rather than taking the safer alternative route available to her – should apply to the facts of the case. While plaintiff attempted to assert that numerous genuine issues of material fact existed, the court disagreed, entering summary judgment on behalf of the client, dismissing all claims and crossclaims.
Michael S. Takacs
Castilla Delivers Complete Defense Victory in Florida Premises Liability Case
Mirelis Castilla (Of Counsel-Miami) secured summary judgment and a complete dismissal in Leon County Circuit Court, Tallahassee, Florida, for a residential property owner client. The plaintiff, a tenant at our client’s property, claimed she was attacked due to negligent security on the premises – specifically, inadequate locks and a defective window – and sought to hold the client liable under premises liability theories, including alleged violations of the Florida Residential Landlord and Tenant Act. Mirelis moved for summary judgment on several key grounds, demonstrating that the client, as an out-of-possession owner, had fully delegated day-to-day management and maintenance responsibilities to a professional property management company and therefore owed no duty under Florida law because it retained no control and had no notice of any alleged dangerous conditions. She also relied on an exculpatory provision in the lease, previously deemed clear and unambiguous by the court in granting summary judgment to the codefendant property manager, arguing that it applied equally to our client, as owner and landlord. The court agreed, finding the lease’s exculpatory provision enforceable as to the client and concluding that the lack of actual or constructive notice, coupled with the client’s complete delegation of operational responsibilities, warranted summary judgment. The court held that the plaintiff failed to present specific facts creating a genuine dispute as to any essential element of her claims. The decision reaffirms that out-of-possession landlords who properly delegate management duties and include enforceable exculpatory provisions in their leases can effectively limit exposure to premises liability claims.
Mirelis Castilla
Grace, Melvani, and Tutone Obtain Dismissal With Prejudice in Aviation Wrongful Death Case
Kathryn Grace (Partner-Charlotte, NC), Nicole Melvani (Partner-McLean, VA), and Thomas Tutone (Associate-McLean, VA) obtained dismissal with prejudice of an aviation matter on behalf of Wilson Elser’s client, a student pilot. The case arose out of an airplane crash that resulted in the death of the certified flight instructor, as well as injuries to the client and a teenage passenger. The certified flight instructor’s estate filed a wrongful death claim against our client, who was participating in his first day of flight instruction through a university aviation program on the day of the accident. The amended complaint alleged that the student pilot was nervous and unprepared, and caused a stall during takeoff. Kathryn and Nicole successfully argued against this. In particular, the amended complaint failed to state a claim for relief because it did not allege that the client breached any duty owed under Federal Aviation Regulations. Importantly, and in support of an argument for dismissal with prejudice, they also argued the certified flight instructor was the pilot in command and bore ultimate responsibility for the operation of the aircraft at the time of the accident, and for ensuring the student was adequately prepared for the training flight. While this was a tragic accident, the certified flight instructor’s estate could not sustain a claim for negligence against her student for failure to state a claim and any amendment would be futile. The Court agreed and dismissed the action against our student pilot client in its entirety, with prejudice.
Kathryn Anne Grace, Nicole T. Melvani and Thomas Tutone
Hill and Brown Secure Summary Judgment for Engineering Client After Establishing No Connection to Incident Property
Michael A. Hill (Associate-Stamford, CT) and Stephen P. Brown (Partner-Stamford, CT) obtained summary judgment in Bridgeport Superior Court, Connecticut, for an engineering firm client. In 2021, the plaintiff was injured when a trench allegedly collapsed while he was performing excavation and water main installation work at a property. The plaintiff named our client in the lawsuit, but preliminary discussions revealed the engineering firm was not associated with the property at the time of the incident. After confirming this with the client, Michael contacted the plaintiff’s counsel to determine the basis for naming the client as a defendant. Plaintiff’s counsel advised that the codefendant’s counsel provided our client’s name. After conducting limited discovery with the parties to establish the client’s lack of involvement, Michael and Steve moved for summary judgment on that basis. Plaintiff’s counsel acknowledged that he had no basis to oppose the motion and allowed it to enter on the record without objection. After Michael argued the motion, the presiding judge concurred with Wilson Elser’s arguments, granting summary judgment absent the plaintiff’s objection. The plaintiff informed counsel he would not object.
Michael A. Hill and Stephen P. Brown
Cash, Zemsky, and Hall Secure Unanimous Defense Verdict for New York City Casino
Joshua Cash (Partner-New York, NY), Jessica Zemsky (Partner-White Plains, NY), and Kyle Hall (Associate-New York, NY) secured a unanimous defense verdict in the Supreme Court of New York, Queens County, for Wilson Elser’s casino client. The elderly plaintiff in this case alleged that she slipped and fell on water in the casino’s food court due to a purported ceiling leak. Plaintiff relied on a water-stained ceiling tile she observed after the fall while looking up, but admitted she never saw water leaking and could not establish how long the condition existed. Surveillance footage was central to the defense. We presented a video showing 44 patrons traversing the area without incident in the 12 minutes before the fall and demonstrated that a separate slip that occurred just minutes earlier in a different location effectively defeated notice. Expert testing further undermined plaintiff’s claims: our expert confirmed the floor was slip-resistant even when wet, and on cross-examination, plaintiff’s expert conceded his testing did not reveal a hazardous condition and that his leak theory was speculative. The court also denied the plaintiff’s request for a missing document charge related to alleged post-incident photographs. We argued that there was no willful or contumacious conduct on our client’s part, as the officer who allegedly took the photos was no longer employed, the plaintiff never sought his deposition or the photos, and no trial testimony established that the photos currently exist, an essential requirement under PJI 1:77. The Wilson Elser team ultimately argued that any theories as to how the water got on the floor were merely speculative, no dangerous condition could be pinpointed, and the plaintiff failed to prove notice. Despite the plaintiff’s arthroscopic knee surgery and a $300,000 demand (reduced to $100,000 during trial), the jury deliberated briefly after rewatching the video and returned a unanimous verdict finding the area reasonably safe.
Joshua Cash, Jessica A. Zemsky and Kyle Hall
Brown and Hill Obtain Dismissal for Youth Baseball League on Standing Grounds
Stephen P. Brown (Partner-Stamford, CT) and Michael A. Hill (Associate-Stamford, CT) obtained dismissal in Danbury Superior Court, Connecticut, for a nonprofit youth baseball league client, based on the plaintiff’s lack of standing. The plaintiff, an unincorporated association formed solely for the purpose of this lawsuit, filed suit against our client, its local league affiliate, and 23 individual board members. The plaintiff’s complaint alleged negligence, fraud, and violations of the Connecticut Unfair Trade Practices Act. Recognizing that the parties’ defenses were aligned, Michael coordinated with the codefendant’s counsel to research dismissal of the matter based on jurisdictional grounds. After meticulous review of case law and drafts, Wilson Elser and the codefendant’s counsel filed motions to dismiss. During oral argument, Michael further articulated the firm’s position on the plaintiff’s standing, including its attempt to assert claims on behalf of a proposed class. The court agreed with the arguments, holding that the plaintiff lacked standing to bring this action and entered a judgment of dismissal in favor of our client and all other defendants.
Stephen P. Brown and Michael A. Hill
Grandison, Russell, and Dolby Secure Defense Verdict on Damages in High-Stakes Construction Litigation
Sasha Grandison (Of Counsel-Baltimore), Angela Russell (Partner-Baltimore), and Maya Dolby (Associate-Baltimore) obtained a favorable defense verdict on damages for a ready-mix concrete supplier client following a three-week trial in Baltimore City Circuit Court, Maryland. The plaintiff in this construction litigation, a developer and contractor, alleged that our client caused damage to the garage of a historic building undergoing renovations, seeking $2,300,000 in damages for demolition and reconstruction of the garage, financing costs, interest, lost rental income, and budget variance damages. Liability in the matter was conceded. The jury deliberated for 20 minutes before rendering a verdict of $275,500, a figure far below the last offer made to the plaintiff and a fraction of the plaintiff’s last demand. The client was extremely pleased with the outcome. The Baltimore team is grateful to paralegal Amanda Simpson and secretary Autumn Skinner for their exceptional, supportive efforts before and during the trial.
Sasha R. Grandison, Angela W. Russell and Maya Dolby
Hendry and O’Toole Secure Favorable Defense Settlement in High-Exposure Wrongful Death Action
Diana M. Hendry (Of Counsel-Madison, NJ) and John P. O'Toole (Partner-Madison, NJ) secured a favorable settlement on behalf of their property owner client in a potentially high-exposure wrongful death action. The client purchased the facility with known roof problems and intended to complete full repairs. However, during the repair process, the plaintiff, an employee of the demolition subcontractor, fell through the decrepit roof to a gruesome death. The decedent’s widow sued the sub-contractor employer, the roofing contractor, the building tenant, and our client. The allegations against the client included failure to disclose the roof's condition accurately and knowingly retaining an inferior contractor to conduct the necessary repairs. Despite facing an aggressive plaintiffs’ firm representing the decedent and his widow, John and Diana conducted early depositions of the parties' representatives, and, before incurring significant expert costs, the client contributed only minimally to the overall settlement. Among the factors that forced the settlement was the deep dive review and discovery of the plaintiff widow’s social media posts, which recounted a troubled relationship with the decedent, undermining the loss-of-services damages alleged in the plaintiff's claim.
Diana M. Hendry and John P. O'Toole
Ross and Umansky Achieve Outstanding Result in High-Stakes Bronx County Labor Law Trial
Mathew Ross (Partner-White Plains) and David Umansky (Associate -New York, NY), assisted by paralegal Martha Chavez and firm interns Jessica Pizzi and Francesca Rocha, secured an outstanding result in Bronx Supreme Court, New York, on behalf of a construction company client after a nearly four-week trial featuring 13 witnesses, including nine experts. The plaintiff, a union bricklayer, alleged that he fell from one scaffold level to the level below, sustaining significant injuries, and was taken to the hospital via ambulance. He had a two-level cervical fusion surgery, a single-level lumbar fusion surgery, and the right ankle injury required no surgery. During the trial, the jury found that while the plaintiff did fall from a bicycle scaffold to the scaffold below, Mat and David’s proximate cause arguments, asserting that the fall was not the proximate cause of the plaintiff’s cervical fusion or ankle injuries, were compelling, and limited proximate cause to the lumbar spine injury only. Despite a $13.5 million demand at the start of trial and plaintiff’s $22 million closing summation request, the jury returned a verdict of $759,800; a post-closing high-low agreement was agreed upon, eliminating appeal risk and resulting in $1 million less than what was offered to the plaintiff pre-closings.
Mathew P. Ross and David I. Umansky
Lowry Wins Motion to Compel Arbitration
Michael Lowry (Partner-Las Vegas) succeeded on a motion to compel arbitration in the Eighth Judicial District Court, Clark County, Nevada, for Wilson Elser’s client, a regional gym. The plaintiff, a gym member, alleged she was injured after tripping and falling while approaching a row of exercise equipment. She filed suit asserting that her fall resulted from the gym's negligence. However, her membership agreement contained an arbitration clause requiring the parties to resolve this dispute through arbitration. Michael moved to compel arbitration, and the court agreed, finding the arbitration clause enforceable as to the plaintiff’s claims and granting the motion.
Michael Lowry
Talisman and Weintraub Secure Final Summary Judgment in Wrongful Death Case
Amy Talisman (Of Counsel-Miami) and Erica Weintraub (Associate-Miami) prevailed on a motion for final summary judgment in the Eleventh Judicial Circuit of Florida, Miami-Dade County, on behalf of a security services company client. The matter involved a wrongful death action arising from the fatal shooting of a woman in December 2017. The fatal shots were fired from the parking lot of a Miami-Dade County-owned regional library, where our client provided security services. The shooting occurred about two hours after the library closed, and the client’s personnel had left for the evening. The plaintiff alleged that the security company’s contract required it to make security recommendations and that it failed to do so. Amy and Erica succeeded on their motion for final summary judgment by establishing that the plaintiff was unable to prove that Wilson Elser’s client owed a duty to the decedent under the circumstances of the case, thus defeating a $6 million final demand against the security company.
Amy Talisman and Erica L. Weintraub
Moise and Wright Win Summary Judgment for Bowling Center Clients in Florida Premises Liability Case
Krystal Yearwood Moise (Partner-Orlando) and Ashley Wright (Associate-Orlando) secured a complete summary judgment in Sarasota County Court, Sarasota, FL, on behalf of Wilson Elser’s bowling company clients in a premises liability action arising from a reported trip and fall at a Sarasota County bowling center. The plaintiff claimed a dangerous condition at the facility’s entrance caused the fall and resulting injuries, which required surgical intervention. Following discovery, Krystal and Ashley filed a motion for summary judgment, asserting that the record was devoid of any evidence demonstrating the existence of a hazardous condition at the time of the incident or establishing that our clients had actual or constructive notice of any such alleged condition. The court granted the Wilson Elser team’s motion for summary judgment in its entirety, finding no evidence of a hazardous condition at the time of the fall, and directed entry of final judgment in the clients’ favor, with taxable costs to be determined.
Krystal Yearwood Moise and Ashley Wright
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Christopher Flanagan to Speak at CLM Event at Boston’s Museum of Science
When: September 9, 2011
Conference: Council of Litigation Management (CLM)
People: Christopher P. Flanagan
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Christopher Flanagan to Speak at CLM Event at Boston’s Museum of Science
When: September 9, 2011
Conference: Council of Litigation Management (CLM)
People: Christopher P. Flanagan
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Christopher Flanagan to Speak at CLM Event at Boston’s Museum of Science
When: September 9, 2011
Conference: Council of Litigation Management (CLM)
People: Christopher P. Flanagan
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Christopher Flanagan to Speak at CLM Event at Boston’s Museum of Science
When: September 9, 2011
Conference: Council of Litigation Management (CLM)
People: Christopher P. Flanagan
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Christopher Flanagan to Speak at CLM Event at Boston’s Museum of Science
When: September 9, 2011
Conference: Council of Litigation Management (CLM)
People: Christopher P. Flanagan
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Vignali and Marrelli Secure Dismissal in Its Entirety for Consumer Electronics Industry Giant in Defamation and Emotional Distress Action
Rosario Vignali (Senior Counsel-White Plains) and Samantha Marrelli (Associate-White Plains, NY) prevailed on a motion to dismiss in the Supreme Court of New York, New York County, on behalf of a global consumer electronics company client. The plaintiff in this case sought declaratory and injunctive relief, as well as compensatory damages, asserting claims for defamation, "negligent misidentification", and intentional infliction of emotional distress arising from an incident at a store. The plaintiff alleged that a security supervisor asked him to leave the premises based on a purported prior incident, and that a store employee falsely reported to 911 and responding NYPD officers that his conduct warranted removal. The court held that: 1) the defamation claim was insufficiently pleaded because the complaint failed to contain the alleged defamatory words or statements; 2) “negligent misidentification” is not a valid claim under New York State law; and 3) the plaintiff failed to plead extreme and outrageous conduct, intent, or causation to support the emotional distress claims. The court’s opinion borrowed language from Russ and Samantha’s motion to dismiss briefings verbatim, and because the pleading defects could not be cured, it dismissed the complaint against our client in its entirety.
Rosario M. Vignali and Samantha M. Marrelli
Muse and Delay Secure Summary Judgment Dismissal for Security Company Clients on No-Duty Argument After $7.5 Million Demand
Dirk Muse (Partner-Seattle) and Hailey Delay (Associate-Seattle) obtained summary judgment in Thurston County Superior Court, Olympia, Washington, for Wilson Elser's clients, a privately owned security company and its security officer, in a wrongful death and negligence action arising from a fatal, random shooting in a grocery store parking lot. The case stemmed from a September 2022 incident in which two brothers drove into the store lot, parked, and the younger sibling entered the store. A man with a history of mental illness, who had recently regained his gun rights and purchased a handgun hours earlier, entered the parking lot and fatally shot the brother seated in the vehicle. The shooter had no connection to the victim and was apprehended within minutes. At the time, our client security company was under contract with the store to provide a patrol vehicle and a single unarmed security guard on weekend evenings.
The decedent’s estate and surviving brother sued the grocery chain and our clients, asserting claims for negligence, wrongful death, nuisance, and negligent hiring and supervision by the security company. After unsuccessful mediation – in which the plaintiffs demanded $7.5 million and the clients jointly offered under $100,000 – Dirk and Hailey moved for summary judgment, while the plaintiffs moved for partial summary judgment, seeking dismissal of certain affirmative defenses. Dirk and Hailey argued that the security company owed no duty to plaintiffs because it neither possessed nor controlled the premises and had no obligation to protect against unforeseeable criminal acts. Applying the “prior similar incidents” test, the court agreed that the shooting was a random, unforeseeable act and that the plaintiffs failed to present evidence of similar prior incidents on the premises. The court granted summary judgment in favor of Wilson Elser’s clients, dismissing all claims against them.
Dirk J. Muse and Hailey Delay
Greene and Heim Win Appeal of Judgment on the Pleadings in Duty of Care Claim
Nigel Greene (Of Counsel-Philadelphia) and Angela Heim (Of Counsel-Philadelphia) prevailed in the Superior Court of Pennsylvania on the plaintiff's appeal of the dismissal of Wilson Elser’s client, a Philadelphia bus tour company, based on a motion for judgment on the pleadings. The plaintiff alleged that our client allowed her to exit a tour vehicle at a location where a depressed roadway grate created a tripping hazard. At the trial court level, Nigel successfully argued that the company had no legal responsibility for the condition of the roadway and owed no duty to the plaintiff regarding that condition. The court concurred, granting Nigel’s motion for judgment on the pleadings and denying the plaintiff’s motion for reconsideration. On appeal, Angela wrote the client’s brief, and the Superior Court affirmed the trial court's decision, holding that the complaint failed to allege a legally cognizable breach of duty –even if all allegations were taken as true.
Nigel A. Greene and Angela M. Heim
Allin and Merritt Prevail in Construction Defect Arbitration
Taylor Allin (Partner-Phoenix) and Nicholas Merritt (Associate-Phoenix) successfully defended their client, a national home improvement store, in an arbitration involving construction defect and breach of contract allegations. The client contractually arranged for a general contractor and a supplier of roofing materials to replace a private homeowner’s roof. During the delivery of materials, the roof was damaged. While waiting for an assessment of repairs, the roof was further damaged by a rainstorm. The house was not repaired and eventually declared a total loss due to exposure to the elements over a long period of time.
The homeowners' insurer also brought a subrogation action seeking damages for the cost of the entire home for over $400,000. The homeowners sought damages over $1,000,000. The arbitrator agreed with the mitigation-of-damages argument advanced by Taylor and Nicholas, limiting damages to the original incident and the first rainstorm only. Fault was allocated equally between the delivery company and the general contractor. Additionally, Plaintiffs were not awarded attorneys' fees as they were not the prevailing party.
Taylor H. Allin and Nicholas Merritt
Lowry Wins Dismissal with Forum Non Conveniens Motion
Michael Lowry (Partner-Las Vegas) prevailed on a motion to dismiss based on forum non conveniens for Wilson Elser’s client, a hotel on the East Coast. The plaintiffs brought suit in the Eighth Judicial District Court, Clark County, Nevada, alleging they were assaulted and battered at the hotel. Michael moved to dismiss based on forum non conveniens, so the case could be re-filed in the jurisdiction where the hotel is located. The guests and all the evidence relating to what had occurred were in that jurisdiction. The district court agreed that the plaintiffs' choice of Nevada as the forum was entitled to less deference and that the balance of interests favored litigating the matter in the home jurisdiction. Wilson Elser’s motion was granted, and the case was dismissed without prejudice to be litigated in a different forum.
Michael Lowry
Russell and Chang Secure Dismissal with Prejudice in Federal Racial Discrimination Case
Angela W. Russell (Partner-Baltimore) and Ellen E. Chang (Associate-Baltimore) scored a dismissal with prejudice, in the United States District Court for the District of Maryland, for an Annapolis, Maryland hotel against which plaintiffs claimed allegations of § 1981 racial discrimination. Plaintiffs charged hotel staff and management with racial animus in their communications to plaintiffs and handling of plaintiffs during their patronage of the hotel. In addition to racial discrimination, the Amended Complaint alleged numerous state law claims, including negligence, defamation, and conversion. Ellen composed the Motion to Dismiss and Reply to Plaintiffs’ Opposition, highlighting the bare legal conclusions of the Amended Complaint and plaintiffs’ bungled attempt to seek the Court’s determination of the merits of the case improperly at the pleading stage. In a memorandum opinion, the United States District Court detailed plaintiffs’ failure to allege direct evidence of racial discrimination and plaintiffs’ raising of little more than vague, conclusory allegations of race-based treatment. Accordingly, the U.S. District Court granted defendants’ Motion to Dismiss for failure to state a claim, dismissing with prejudice plaintiffs’ § 1981 claims and directing the Clerk to close the case. Declining to exercise supplemental jurisdiction over the state law claims, the U.S. District Court dismissed the state law claims without prejudice.
Angela W. Russell and Ellen Chang
Shrestha, Campos, and MacManus Obtain Summary Judgment for Security Company in High-Exposure Matter
Rosy Shrestha (Associate-Los Angeles), Victor M. Campos (Of Counsel-Los Angeles), and Carlos E. MacManus (Of Counsel-Los Angeles) secured summary judgment in the Superior Court of California, Los Angeles County, for Wilson Elser’s security guard company client. The plaintiff, a security guard employed by our client, was working at a dialysis center. His regular duties included opening the center for employees and customers. On the date of the subject incident, the plaintiff used a crowbar from his personal vehicle to open the sliding metallic gate. The gate fell on his leg, shattering his ankle and causing severe vascular damage. The plaintiff alleges vascular issues, which are creating ongoing exposure well in excess of seven figures, with the plaintiff’s last demand at mediation at $4,000,000. Rosy and Carlos crafted a meritorious argument establishing that our client was entitled to summary judgment because the undisputed facts established that the plaintiff was not performing any work for the security company when the accident occurred, as his attempted repair of the gate fell outside his duties and responsibilities as a security guard. The court agreed and granted Wilson Elser’s motion for summary judgment, a significant win in a jurisdiction where summary judgment victories are notoriously rare.
Rosy Shrestha, Victor M. Campos and Carlos E. MacManus
Karetsky and Comer Secure Summary Judgment for Site Safety Manager in New York County
Zachary Karetsky (Associate-New York, NY) and Thomas Comer (Partner-New York, NY) secured summary judgment and dismissal of all claims against Wilson Elser’s client, a construction site safety manager, in a personal injury action in the New York Supreme Court, New York County. The plaintiff alleged she was struck by fencing that fell from barricades along a temporary pedestrian walkway adjacent to an active construction site, suing the property owner and the general contractor. They, in turn, brought a third-party action against our client seeking contractual indemnification, breach of contract, contribution, and common law indemnification. Zach and Tom moved for summary judgment, arguing that the client never executed the proposed safety consulting agreement containing indemnification obligations and, regardless, owed no duty of care because a site safety manager without authority to control or stop work cannot be liable in negligence. The defendants opposed on various contract, insurance, and factual grounds.
The court granted Wilson Elser’s motion in its entirety, finding – consistent with First Department precedent – that the client’s role was limited to recommending safety practices and did not include site control. On that basis, the court held that there were no grounds to impose common-law negligence liability on a site safety manager lacking site control authority. Without a viable negligence claim, all third-party claims and cross-claims necessarily failed, resulting in complete dismissal in our client’s favor.
Zachary Karetsky and Thomas W. Comer
Dodrill, Stewart, and Ordorica Convince Various Opposing Counsel to Drop Recent Suits Against Firm Clients
Colt Dodrill (Partner-Phoenix), Katherine Stewart (Of Counsel-Phoenix), and Jake Ordorica (Associate-Las Vegas) have obtained voluntary dismissals of the firm’s car-sharing platform client and various vehicle owners without having to file motions to dismiss. Colt, Katie, and Jake have called and educated multiple plaintiffs’ counsel in Arizona and Nevada on their states’ respective peer-to-peer car-sharing statutes, explaining the facts of various cases and how clients are immune from suit under those statutes. They also forwarded favorable rulings to opposing counsel from prior cases, holding that no negligent entrustment claim will stand when the shared-vehicle driver has a valid driver’s license, and finding clients are not vicariously liable for each driver’s negligence. This wave of voluntary dismissals by separate plaintiffs’ firms in two states has saved Wilson Elser clients substantial defense costs and allowed carriers to close files quickly.
Colt B. Dodrill, Katherine A. Stewart and Jake A. Ordorica
McDonough and Neiberger Secure Jury Award Well Below Settlement Proposal for Loading Dock Equipment Manufacturer
Sean McDonough (Partner-Tampa) and Eric Neiberger (Of Counsel-Orlando) secured a favorable verdict in Duval County Circuit Court in Jacksonville, Florida, convincing the jury that the plaintiff did not sustain a permanent injury and was not entitled to damages for pain and suffering following a minimal-impact motor vehicle accident. The plaintiff alleged that the accident caused herniated discs in his neck and back, leading to injections, radiofrequency ablation (RFA), and a $3.2 million life-care plan. Wilson Elser conceded negligence and past medical expenses on behalf of the client, and the jury awarded approximately $113,000 in past and future medical expenses – well below the client's proposal for settlement served more than two months before trial. As a result, Wilson Elser is moving for fees and costs and will be seeking an award of fees and costs that exceeds plaintiff’s verdict.
Sean M. McDonough and Eric Neiberger
Sheehan and Durso Secure Summary Judgment for Hotel Franchisee in Trip and Fall Case
Noelle Sheehan (Partner-Orlando) and Molly J. Durso (Associate-Orlando) obtained summary judgment in the Second Judicial Circuit Court, Leon County, Florida, on behalf of Wilson Elser’s client, a franchisee of a national hotel chain. In this protracted premises liability case, the plaintiff alleged that the steps at the hotel’s main entrance constituted an unreasonably dangerous condition, causing her to trip and fall. Using the plaintiff’s own deposition testimony, Noelle and Molly argued that the steps were not a dangerous condition but rather were an open and obvious feature of which the plaintiff was well aware, and that the subject incident was caused by the plaintiff’s negligence rather than that of our client. The court was persuaded by Wilson Elser’s arguments and granted the motion for summary judgment, ending more than 2.5 years of contentious litigation.
Noelle K. Sheehan and Molly J. Durso
Takacs Secures Summary Judgment for Client Under Pennsylvania Independent Contractor Law
Michael S. Takacs (Partner-Philadelphia) secured the dismissal of a building owner client on a contested motion for summary judgment in the Court of Common Pleas, Philadelphia County, Pennsylvania, a particularly plaintiff-friendly jurisdiction where even uncontested summary judgment motions are often denied. The client retained the codefendant general contractor to perform a build-out of office space, who, in turn, retained numerous subcontractors to perform the work. The plaintiff, an employee of a sub-subcontractor, was injured while descending a ladder when he stepped on a sheet rock cart allegedly placed at its base by an unknown, never identified individual only moments before the incident. The plaintiff sued our client, the general contractor, and several subcontractors on-site on the date of the accident. Following fact and expert discovery, Mike argued that summary judgment was warranted because: 1) the plaintiff failed to establish that the client created, knew, or should have known and/or had actual or constructive notice about the cart’s placement; and 2) the client owed no legal duty to the plaintiff, a sub-subcontractor of the client’s independent general contractor, under long-established Pennsylvania law holding that a hirer of an independent contractor is not responsible for injuries sustained by the contractor’s employees or subcontractors where the hirer neither controls the work, nor does it present a peculiar risk. Rejecting the plaintiff’s claims asserting the existence of numerous genuine issues of material fact, the court granted summary judgment dismissing all claims and crossclaims against Wilson Elser’s client.
Michael S. Takacs
Beres and Willig Prevail on Motion for Summary Disposition for Restaurant in Premises Liability Case
Katherine Beres (Of Counsel-Detroit, MI) and Garett Willig (Partner-Houston, TX) succeeded on a motion for summary disposition in the St. Clair County Circuit Court, St. Clair, Michigan, in a premises liability case against Wilson Elser’s restaurant client. The plaintiff allegedly tripped and fell on a crack in the exterior yellow curb near the restaurant entrance, claiming the restaurant failed to maintain the premises in a reasonably safe condition. However, Katherine and Garett's explanation in support of their motion for summary disposition demonstrated that the crack in the yellow-painted curb was not a dangerous condition and did not pose an unreasonable risk of harm to the plaintiff or anyone else. The court concurred, granting Wilson Elser’s motion and dismissing the case.
Katherine M. Beres and Garett A. Willig
Mock, Beres, and Gettler Shut Down Agency Claims for Franchisor Client with Summary Disposition Victory
Valerie Mock (Partner-Detroit), Katherine Beres (Of Counsel-Detroit), and Nicole Gettler (Of Counsel-Detroit) prevailed on a motion for summary disposition in the Oakland County Circuit Court in Pontiac, Michigan, for a national hair removal franchisor client. The plaintiff allegedly sustained injury to her genitals during an improperly performed waxing procedure conducted by an employee at the hair removal franchisee location. The plaintiff sued the franchisee and its employee for negligence and sued our client franchisor for vicarious liability based on actual or apparent agency. Valerie, Katherine, and Nicole filed a dispositive motion clarifying that no actual agency relationship existed between the franchisor and the franchisee because our client did not exercise control over the franchisee’s operations. The Detroit team also demonstrated that apparent agency was likewise not viable, as the plaintiff could not show reasonable reliance on her subjective belief that the franchisee acted as the franchisor’s agent. The court agreed and granted summary disposition in favor of Wilson Elser’s franchisor client.
Valerie Henning Mock, Katherine M. Beres and Nicole L. Gettler
Niederer and Miller’s Motion to Compel Arbitration Granted
Eric Niederer (Partner-Stamford, CT) and Casey Miller (Associate, Stamford, CT) prevailed on a motion to compel arbitration in Danbury Superior Court, Danbury, Connecticut, for Wilson Elser’s multinational technology company client. The plaintiff alleged he was injured in a two-vehicle collision involving a co-defendant driver and claimed our client was vicariously liable for the driver’s alleged negligence. The plaintiff maintained that the driver was our client's employee because he was using the client's app and transporting a passenger acquired through the company’s platform at the time of the accident.
Once litigation began, Eric and Casey filed a motion to stay proceedings and compel arbitration pursuant to our client's Terms of Service. After oral argument, the court required additional briefing from Wilson Elser on other motions to compel filed on our client’s behalf in the state, as well as arbitration agreements and clickwrap agreements. Following that briefing, the court granted the motion, the judge relying on caselaw cited in Eric and Casey’s motion and the applicable agreement between our client and the plaintiff.
Eric W.F. Niederer and Casey C. Miller
Repeat Success: Niederer and Miller Compel Arbitration for Multinational Technology Company Client
Eric Niederer (Partner-Stamford, CT) and Casey Miller (Associate, Stamford, CT) succeeded on a motion to compel arbitration in Stamford Superior Court, Stamford, Connecticut, for Wilson Elser’s multinational technology company client. The plaintiff alleged he was injured in a two-vehicle collision involving a codefendant driver and claimed that our client was vicariously liable for the driver’s alleged negligence. The plaintiff maintained that the driver was our client's employee because he was using the client's app and transporting a passenger obtained through the company’s platform at the time of the accident.
Once litigation began, Eric and Casey filed a motion to stay proceedings and compel arbitration pursuant to our client's Terms of Service. After oral argument, the court requested the plaintiff’s deposition transcript before issuing a ruling. The court granted the motion to stay proceedings and compel arbitration, relying on the plaintiff’s deposition testimony in ruling in favor of our client.
Eric W.F. Niederer and Casey C. Miller
Dodrill and Ordorica Obtain Dismissal in Hit-and-Run
Colt Dodrill (Partner-Phoenix) and Jake Ordorica (Associate-Las Vegas) successfully moved in Nevada’s Clark County District Court to dismiss negligence claims against Wilson Elser’s clients – a car-sharing platform and the vehicle owner. The plaintiff alleged that the clients negligently entrusted the car to a “Doe” driver who hit her vehicle and fled the scene. After opposing counsel refused to voluntarily dismiss our clients, Colt and Jake argued that the shared vehicle driver’s valid license belied the negligent entrustment claim and that such liability does not extend to successive entrustments. Colt and Jake further argued that, under state peer-to-peer car sharing statutes, federal law bars vicarious liability claims. The Court agreed, granting Wilson Elser’s motion two days before the scheduled hearing.
Colt B. Dodrill and Jake A. Ordorica
Pfeifer, Chacon & Ledlova Secure Final Summary Judgment for National Retail Client
Miami, Florida, partners Russell M. Pfeifer and Raul J. Chacon and associate Monika Ledlova secured final summary judgment in Miami-Dade County Circuit Court on behalf of a national retail client in a premises liability action. The plaintiff alleged she suffered injuries including a traumatic brain injury when a 25-pound metal price sign fell from the top of a large metal safe inside the store. Monika Ledlova argued the motion, successfully demonstrating that surveillance video clearly showed the plaintiff shaking the metal safe immediately before causing the sign to fall off and strike her in her head, thereby causing her own injuries. The team argued that the metal sign was open and obvious, and that no dangerous or concealed condition existed on the premises. The court agreed, granting summary judgment in favor of our client and finding no breach of duty under Florida law. This decisive win underscores the team’s strategic use of video evidence and persuasive advocacy in defeating unsupported premises liability claims. The victory also positions our client to recover attorneys’ fees and taxable costs under applicable Florida statutes, further solidifying a complete defense outcome.
Russell M. Pfeifer, Raúl J. Chacón Jr. and Monika Ledlova
Flecker & Cushmaro Secure Defense Verdict for Uber: Vicarious Liability Victory Stemming from a Car Accident
Melinda Flecker (Partner-Long Island, NY) and Tal Cushmaro (Partner-White Plains, NY) have secured a unanimous defense verdict on behalf of the firm’s client, Uber Technologies, Inc (Uber), in a motor vehicle accident case tried in Supreme Court, Kings County, New York. The plaintiff alleged she was injured in a two-vehicle collision involving a co-defendant driver and claimed that Uber was vicariously liable for the driver’s alleged negligence. She contended that the driver was Uber’s employee because he was using the Uber App and transporting a passenger obtained through the platform at the time of the accident. Melinda and Tal successfully defended the case by demonstrating, through evidence elicited during the plaintiff’s case-in-chief, that the driver was an independent contractor, not an employee. The trial’s liability phase spanned three weeks, including seven days of jury selection, extensive motion practice, and five days of testimony. After deliberating for approximately 30 minutes, the jury concluded that although the driver was negligent, Uber was not liable for his conduct because he was not its employee.
Tal Z. Cushmaro and Melinda Flecker
Robinson, Comer & Levasseur Secure Summary Judgment for a New York County, Transit Operators, and Driver in Personal Injury Case
Noelle Robinson (Of Counsel-White Plains, NY) and New York partners Guy Levasseur and Thomas Comer defended a NY county, transit operators, and bus driver in a personal injury case with a potential value in excess of $5 million. The plaintiff alleged a fall on a transit bus, from which he initially claimed cervical, lumbar, and right knee complaints treated with injections, but later claimed a traumatic brain injury and cognitive impairments, as well as a permanent inability to work. The plaintiff refused to settle, and the case was set to go to trial in January. Noelle filed a motion for summary judgment, arguing that the plaintiff was not able to establish that the braking of the bus was unusual or violent. In its Decision and Order, the court found it persuasive that even in his inconsistent testimony, plaintiff admitted that the bus was “moving very slowly” when the alleged incident occurred. The driver confirmed at deposition that he slowed upon observing the brake lights of the vehicle in front of the bus, and that the passenger reported at the time that he did not need medical attention. The decision determined that our clients were entitled to judgment as a matter of law in that the bus was not caused to move in an unusual or violent manner, agreeing that the plaintiff provided no objective evidence of any movement of the bus other than “the jerks and jolts commonly experienced in city bus travel,” despite the plaintiff’s disclosure of an expert with decades of experience, to assert that the bus violated national standards for “jerk rates,” and that the plaintiff raised no triable issue of fact.
Noelle G. Robinson, Guy J. Levasseur and Thomas W. Comer
Marconi and Willig Successfully Defend International Hospitality Group in Wrongful Death Case
Michael Marconi (Of Counsel-Dallas, TX) and Garett Willig (Partner-Houston, TX) secured a unanimous defense verdict on behalf of Wilson Elser’s client, an international hospitality group encompassing restaurants, hotels and gaming, in a premises liability/wrongful death case tried in the 68th Judicial District Court of Dallas County, Texas. The plaintiffs claimed the decedent tripped over an allegedly defective concrete wheel stop in our client’s parking lot, suffered a massive head injury from the fall, and died days later after he was transferred to hospice care. Less than a week before trial, the parties went to mediation and the plaintiffs never came off their demand for $15 million to settle the case. At trial, the plaintiffs presented expert testimony that wheel stops pose an unreasonably dangerous trip hazard; that safer alternatives exist; that the wheel stop in question was particularly dangerous because a piece of rebar was exposed and because it was not painted to contrast with the parking lot floor. Michael, as lead counsel, presented expert testimony that wheel stops are very common and not unreasonably dangerous; that the restaurant group’s parking lot complied with all the applicable ADA and municipal code requirements; and that the exposed rebar was insignificant. Our client’s corporate representative testified that there was no history of wheel stop accidents at the restaurant group’s parking lots prior to the accident at issue. The jury returned a 12-0 defense verdict less than two hours after commencing deliberations.
Michael Marconi and Garett A. Willig
Lum and Davis Secure Swift Defense Verdict for Major Health Care System
Larry Lum (Partner-New York) and Rachel Davis (Of Counsel-White Plains) secured a defense verdict in the Supreme Court of New York, Nassau County, on behalf of Wilson Elser’s client, a major New York Health Care System. The plaintiff in this case claimed she slipped and fell in a bathroom owned by our client, alleging the floor had just been mopped by our client’s employee and was improperly safeguarded while still wet. She further claimed that following the incident, the employee admitted fault, and that other staff she interacted with thereafter acknowledged the floor was wet, although none of these alleged witnesses were produced at trial.
Larry and Rachel presented the employee who would have mopped the floor around the time of the alleged incident – an 87-year-old environmental services worker with more than 50 years of experience, who denied knowledge of the incident or making any admission. He testified to his strict safety protocol, which included barricading the door with a pole to prevent it from being opened and personally ensuring the floor was dry before moving on to the next area. In their summation, Larry and Rachel stressed our client’s credibility, the plaintiff’s lack of witnesses to support her claim, and inconsistencies in her account (e.g., no recollection of having wet clothing or smelling cleaning products). The jury deliberated just 15 minutes before returning a unanimous defense verdict.
Larry Lum and Rachel A. Davis
Neff Prevails on Behalf of Housing Authority in New Jersey in Wrongful Death Case
Robert Neff (Of Counsel-Madison, NJ) received affirmance from the Appellate Division of Superior Court in New Jersey of a summary judgment awarded to Wilson Elser’s client, a large Housing Authority in New Jersey, in a wrongful death case involving a drive-by shooting resulting in the death of plaintiff’s decedent. The 19-year-old man was at a housing development run by the Authority when four assailants entered the development through the unmanned gatehouse, gunned him down, and sped away. The allegation against the Authority was negligence in failing to provide proper security, particularly with respect to the gatehouse at the only entrance to the development, which was not staffed, and where the security gate had not been operational for many years. The city’s Police Department was a codefendant on an allegation of negligent policing pursuant to the terms of an agreement with the Authority to provide police patrols. Our motion to bar an expert report supporting the plaintiff’s theories of liability as untimely served was granted, and plaintiff’s interlocutory appeal was denied. Robert then moved for summary judgment, arguing that the facts of the case did not support the plaintiff’s theory that security was lax, that the plaintiff could not establish a breach of duty, and that the plaintiff had no expert to support the theory of breach or proximate cause. The Police Department then cross-moved for summary judgment, adopting Robert’s arguments and asserting their own immunity defense. The judge agreed with our position, granting summary judgment to the Authority for lack of a factual basis and for the lack of an expert report to support breach and causation. The court below also agreed with the Police Department’s arguments, and granted its motion as well. The plaintiff then appealed. In a unanimous decision, the Appellate Division affirmed the motion judge’s decision on all grounds. The plaintiff’s settlement demand was $2 million. The authority never made an offer.
Robert C. Neff Jr.
Mancuso & Kim Obtain Summary Judgment and Contractual Indemnity for Property Manager in Personal Injury Case
Cheryl Mancuso (Of Counsel-Boston, MA) and Anne Kim (Associate-Boston, MA) defended a property management company for a logistics facility in a personal injury case in the Suffolk County Superior Court in Boston. The plaintiff alleged that he was injured while working at the facility when an object fell on his head, asserting claims of negligence for failure to install preventative safety features within the facility. Co-defendants asserted cross-claims for contribution against the firm’s client. Cheryl and Anne moved for summary judgment as to the plaintiff’s claims and co-defendants’ cross-claims, and affirmatively moved for summary judgment in favor of the firm’s client as to its cross-claims against the co-defendant tenant of the facility for breach of contract and contractual indemnity for the tenant’s refusal to defend and indemnify the firm’s client under the terms of the commercial lease. The plaintiff and co-defendants/plaintiffs-in-cross-claim did not oppose the motion, though the tenant that was the target of the firm’s client’s cross-claims did oppose. Summary judgment was granted as to all claims against the firm’s client, and as to all cross-claims asserted against the tenant, thereby obligating the co-defendant tenant to pay the attorney’s fees incurred on behalf of the firm’s client in defending the claim.
Cheryl Mancuso and Anne V. Kim
Hawai‘i Federal Court Dismisses Claims Against Local Defense Counsel
Joseph Francoeur (Partner-New York, NY), Otis Felder (Partner-Los Angeles, CA), and Ronald Weiner (Of Counsel-New York, NY) obtained dismissal in defending a local Hawai‘i attorney in a significant ruling issued by the U.S. District Court for the District of Hawai‘i. In this high-profile lawsuit, under litigation since 2018, brought by the plaintiff against a large Medical Center and several other Hawai‘i-based medical providers, donor organizations, and attorneys, the court dismissed the action, except for a potential claim against the plaintiff’s own counsel. The case stemmed from the 2016 death of the plaintiff’s daughter and subsequent organ donation procedures. The court granted the defendants’ motions to dismiss, ruling that all claims were barred by the statute of limitations or otherwise legally insufficient. The court also issued an order to show cause, requiring the plaintiff to provide additional information to support her malpractice claim by October 20, 2025, or face dismissal of the entire case. With this ruling, all claims against the medical providers, hospital, donor organizations, government entities, and opposing counsel are concluded. The only remaining avenue for the plaintiff is to pursue a properly supported malpractice claim against her former attorney.
Joseph L. Francoeur, B. Otis Felder and Ronald W. Weiner
Ellenberger, Yvars & Bakula Challenge Causation and Credibility to Secure Pre-trial Dismissal
The Denver, Colorado, team of Laura Ellenberger (Of Counsel), Chris Yvars (Partner), and Benjamin Bakula (Associate) secured a complete pre-trial dismissal in a case where the plaintiff initially demanded $5 million for alleged injuries from a claimed hit-and-run accident involving a delivery van displaying the branding of a well-known international corporation. Although third-party video captured the incident, the team’s investigation raised concerns that the accident may have been staged. Through aggressive discovery and proactive investigation, they uncovered the plaintiff’s history of injury claims and identified strikingly similar allegations of injury. Armed with this evidence, they successfully challenged causation and credibility. The Denver District Court dismissed all claims before trial and ordered reimbursement of our client’s defense costs.
Laura J. Ellenberger, Christopher D. Yvars and Benjamin Bakula
Moran & Neff Deliver One-Two Punch for Homeowner
Jennifer Moran (Partner-Madison, NJ) was successful in a motion for summary judgment in June 2020. The firm’s client owned a home in Ocean County and his son (the plaintiff) fell off an extension ladder while helping his father (the firm’s client) with exterior house painting. The plaintiff suffered a severely broken ankle requiring multiple surgeries and resulting in permanent gait issues. The remaining claims in the case languished during COVID-19 before a trial, which resulted in a “no cause.” The plaintiff appealed the Order granting our client’s Summary Judgment win from 2020 and the no cause for the other defendant. Enter Robert Neff (Of Counsel-Madison, NJ), one of our office’s Appellate gurus, to handle the de novo review! The Appellate Division issued an Order affirming Summary Judgment and the no cause judgment.
Jennifer Martin and Robert C. Neff Jr.
Greenfield & Noto Secure Dismissal of Premises Liability Claim Pending in Philadelphia County
Ben Greenfield (Partner-Philadelphia, PA) and Nicholas Noto (Associate-Philadelphia, PA) secured a victory in Philadelphia County for Wilson Elser’s clients, a property management group and a commercial/residential apartment owner after motion practice that lasted an entire calendar year. The plaintiff in this matter alleged injuries she sustained while on a residential property owned and managed by Wilson Elser’s clients. Plaintiff’s counsel filed a vaguely pled and legally impossible complaint in response to which Ben and Nicholas filed preliminary objections that the court sustained. The plaintiff subsequently filed four amended complaints, purported to be more specifically pled each time – but they were not. After the court dismissed each of the four complaints, Ben and Nicholas team filed a Motion to Prevent Further Amended Complaints, which was sustained by the court, and a final order was entered in favor of dismissing our clients with prejudice. The court’s ruling thwarted a demand in the high six figures and affirmed the precedent that pleadings in Philadelphia County must be legally plausible and pled with specificity.
Benjamin D. Greenfield and Nicholas G. Noto
Piatkowski & Rivas Defeat $4.3 Million Demand in Personal Injury Claim
Kelsi Piatkowski (Of Counsel-Houston, TX) and Servando Rivas (Associate-Houston, TX) scored a huge win on behalf of one of the nation’s largest hardware stores and Fortune 500 company. The plaintiffs brought claims against the client arising out of an alleged failure of a garden shopping cart that struck the foot of one of the plaintiffs. Plaintiffs alleged the incident caused plantar fasciitis for which the plaintiff underwent a surgical procedure and sought $4.3 million in damages. Kelsi and Servando moved for summary judgment on all claims, arguing that the client had no notice of the purported defects and therefore could not be held liable under Texas law. After a month of extensive briefing, the U.S. District Court for the Eastern District of Texas agreed with the client’s arguments and dismissed the entire case with prejudice.
Kelsi Wade Piatkowski and Servando Rivas
Greene & Rojas Overcome Adverse Rulings, Jury Awards $5,000 for Pain and Suffering
Philadelphia of counsel Nigel Greene and Jason Rojas obtained a favorable verdict in a trial in Philadelphia County Court of Common Pleas of a motor vehicle accident involving the plaintiff, who was operating a commercial patient transport shuttle, and our insured driver, who was operating a commercial flatbed truck. As our driver passed the plaintiff’s shuttle, fencing on our client’s truck contacted the shuttle. The plaintiff claimed injuries and pursued a workers’ compensation claim. As a result, the plaintiff had a workers’ compensation lien totaling $96,729.81when she filed a civil suit against our client. Initially, the plaintiff filed her case at the arbitration division in the Philadelphia Court of Common Pleas. However, after the plaintiff received a $5,000 award, she appealed and transferred the case to the major jury division for a jury trial. At the pre-trial conference, the plaintiff made a $2 million demand. The plaintiff’s expert opined that the 30-year-old plaintiff would need a lumbar spinal fusion costing $60,000 to $100,000 and would experience pain and suffering for the rest of her life. Nigel and Jason retained a spinal surgeon who rebutted the report and stated that the plaintiff only sustained strains and sprains and did not require surgery. During trial, the judge ordered the full workers’ compensation lien be placed on the verdict sheet as required damages and directed the jury to enter a finding of negligence against our driver. Despite the adverse rulings of the court, the jury awarded the amount of the lien plus $5,000 for pain and suffering. They jury awarded nothing for future medical treatment.
Nigel A. Greene and Jason B. Rojas
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Enger & Mulvaney Win Summary Judgment for Client that Refused to Settle
Ericson Enger (Associate-Jackson, MS), assisted by Kevin Mulvaney (Partner-Detroit, MI), secured summary judgment for a third-party sample vendor for warehouse stores in a liability action in the Circuit Court of Pulaski County, Arkansas. The plaintiff was injured after slipping on an unidentified substance in a warehouse store, and filed suit against the store and our client, alleging negligence against both. Pursuant to the terms of an executed services agreement, our client only had a duty to clean the area within 10 feet of the sample stands operated in the store by its employees. During discovery, the plaintiff reached a settlement with the store in return for a voluntary dismissal. Shortly thereafter, Ericson filed a motion for summary judgment wherein the team contended that, given the terms of the services agreement between our client and store, the plaintiff could not demonstrate that our client owed her an independent duty of care, nor could she establish the violation of such a duty. Ericson and Kevin supported their arguments with the testimony of a prior employee of our client who measured the distance between the plaintiff's fall and the sample stand he was operating. Ultimately, the court granted the motion for summary judgment, which resulted in substantial savings for the client, that, unlike the store, opted to defend the action as opposed to settling.
Ericson W. Enger and Kevin M. Mulvaney
Piatkowski & Rivas Obtain Dismissal for Landlord Based on Provisions in the Commercial Lease Agreement
Kelsi Wade Piatkowski (Of Counsel-Houston, TX) and Servando Rivas (Associate-Houston, TX) prevailed on a motion for summary judgment that tossed the plaintiff’s claims against our commercial property landlord client. The plaintiff asserted negligence and premises liability claims and contended that the client’s failure to correct a defect on the property entitled him to more than $1 million in damages for significant injuries arising from an incident on the premises. On behalf of the client, Kelsi and Servando argued that it had no control over the subject property pursuant to several provisions contained in a commercial lease agreement with a tenant. The Brazoria County District Court agreed and granted the motion for summary judgment in its entirety, dismissing the plaintiff’s claims and ordering that he take nothing from our client.
Kelsi Wade Piatkowski and Servando Rivas
Yvars, Viergever & McCloskey Prevail for National Health Care Provider in Commercial Arbitration
Christopher Yvars (Partner, Denver, CO) Kimberly Viergever (Of Counsel-Denver, CO), and Michael McCloskey (Senior Counsel-San Diego, CA) secured a complete defense victory for a national health care client in a commercial arbitration where the claimant sought more than $50 million in damages. The dispute centered on long-term services and nondisclosure agreements involving an alleged proprietary software platform, which claimant developed to streamline and enhance health care outcomes management for large-scale providers. The claimant alleged breach of contract and theft of trade secrets, asserting that the firm’s client had improperly used and disclosed confidential processes, data integration methods, and reporting functionalities unique to the claimant’s product. After a multi-day evidentiary hearing featuring testimony from technical experts and company executives, as well as extensive written submissions, the AAA Arbitration, Denver, Colorado, issued a final award denying all claims and dismissing the case in its entirety.
Christopher D. Yvars, Kimberly Viergever and Michael P. McCloskey
Waters & Gilman Affirmance = Favorable Case Law When Video Evidence Directly Contradicts Plaintiff’s Claim of Injury
Jason Waters (Partner-McLean, VA) and Lauren Gilman (Associate-McLean, VA) won affirmance in the District of Columbia Court of Appeals from a Superior Court order granting summary judgment to our common carrier client. In his complaint, the plaintiff, a passenger on our client’s bus, alleged that he was injured when the bus operator negligently braked to avoid colliding with a vehicle. However, video evidence from the bus established that the passenger’s body barely moved when the bus braked. In affirming the trial court’s order granting summary judgement, the Court of Appeals agreed that the video evidence was sufficient to find that the plaintiff could not establish he was injured in the accident. The video showed that the minor collision “had almost no effect on him physically” and he did not exhibit any discomfort in the collision’s aftermath. Notably, the Court of Appeals also gave weight to the fact that the plaintiff did not speak with police about his injuries, directing attention to the police report from the incident that indicated nobody at the scene reported any injuries. Together, the court found that evidence demonstrated no genuine dispute of material fact, and the grant of summary judgment was proper. The opinion provides favorable case law moving forward in the District of Columbia for when video evidence directly contradicts a plaintiff’s claim they were injured, even when a plaintiff has subsequent medical records showing that he sought treatment for injuries.
Jason R. Waters and Lauren E. Gilman
Kloss, Walters & Turtle Defeat Premises Liability Claim Based on the Plain Language of Our Client’s Contract
James Kloss (Partner-Orlando, FL), Rachel Walters (Of Counsel-Miami, FL) and Claire Turtle (Associate-Orlando, FL) were brought into a slip/trip-and-fall case on the eve of trial to represent the janitorial services company at a mall. While the court recognized it was unfair to have a trial on such short notice, the case was on the Florida Supreme Court’s list and, as such, the court did not have the freedom to continue the case. The team was unable to retain experts (but did share experts already retained by the co-defendant) or depose the plaintiff due to the limited time frame before trial. The plaintiff’s most recent demand to our client was $1.2 million. The plaintiff alleged he tripped and fell over an outlet in the carpet flooring of the mall premises. The plaintiff claimed our client owed a duty to notify the mall of a dangerous condition, and to reasonably maintain the area. The team filed a motion for summary judgment on lack of duty, arguing our client owed no duty based on its contract language and the scope of janitorial services. Per the limited contractual services, our client was under no duty to reasonably maintain the premises. The motion was heard less than a month before trial, and the judge granted the motion finding “based on the plain language of the contract, [the janitorial service] was under no duty to reasonably maintain the premises.”
James M. Kloss, Rachel C.G. Walters and Caroline Claire Turtle
Lowry & Brown Earn Voluntary Dismissal
Michael Lowry (Partner-Las Vegas) and Kevin Brown (Of Counsel-Las Vegas) obtained a voluntary dismissal of all claims against Wilson Elser’s client, a flooring subcontractor, in the Eighth Judicial District Court, Las Vegas. The case involved a trip and fall incident that occurred during a renovation project. Michael and Kevin noted that the client's job file reflected that it did not start work on the project until two days after the alleged fall. After reviewing the job files from the general contractor and other subcontractors, the plaintiff agreed with that timeline and voluntarily dismissed all claims against our subcontractor client only.
Michael Lowry and Kevin A. Brown
Burke & Stith Prove Client Did Not Make Special Use of Property
Jimmy Burke (Partner-White Plains, NY) and Gene Stith (Of Counsel-Long Island, NY) obtained a defense verdict after a six-day liability jury trial in Orange Supreme Court. The plaintiff alleged she was seriously injured in a parking lot drain basin that had become a sink hole, which at the time was covered by snow, and she did not see it. The plaintiff had obtained partial summary judgment on liability prior to trial against the property owner and its tenant on the issue of notice. The owner and tenant were responsible per the lease for snow removal and repair and maintenance of the parking lot. Our client, the plaintiff’s employer, was brought into the case by the property’s tenant, as it had a use agreement for a warehouse on the site, and contracted with the tenant to perform certain recycling, packaging, and dunnage work. The tenant vigorously fought to shift the case’s entire liability to our client on the theories of special use of the property, contractual and common law indemnity, and negligence. Due to multiple surgeries including lumbar laminectomies, two implants and removal of spinal cord stimulators, multiple nerve blocks, and a diagnosis of complex regional pain syndrome, the plaintiff’s demand was $15 million. Jimmy and Gene similarly fought back hard and after less than 1.5 hours of deliberations, the jury returned a defense verdict as to our client and found the owner and tenant 100 percent responsible. They specifically found our client did not breach its indemnity agreement because they found that the plaintiff was not performing services under the contract when she was injured, and that our client was not negligent and did not make a special use of the property. They also found no comparative fault against the plaintiff. White Plains, NY, partner Scott Stopnik’ s guidance was a big factor in this win.
James F. Burke
Phoenix Team Obtains Pre-Answer Dismissal for Foreign Tour Guide Operator with No Duty Argument
Taylor Allin (Partner-Phoenix, AZ), Brian Del Gatto (Partner-Phoenix, AZ), and Brian Page (Associate-Phoenix, AZ) secured dismissal in the Arizona Federal District Court on behalf of Wilson Elser’s client, an independent contractor tour guide. The client was working in his independent contractor capacity for a tour company, during which time the company offered an optional flight operated by a separate, unaffiliated entity. Several passengers chose to take the flight, which tragically crashed, resulting in two fatalities and injuries to other passengers. The plaintiffs all brought suit against the tour company, the flight operator, and the tour guide. Wilson Elser filed a motion to dismiss the claims against the client on the basis that he owed no duty in connection with the flight. The court agreed and granted the motion, dismissing the case with prejudice and without leave to amend, resulting in major savings in legal fees for the client and avoiding involvement in a case allegedly worth multiple millions of dollars.
Taylor H. Allin, Brian Del Gatto and Brian P. Page
Hanrahan, Farrell & Creps Secure Summary Judgment on Plaintiff’s Breach of Contract Claim
Washington, D.C., partners Catherine Hanrahan and Kevin Farrell and associate Madeline Creps won summary judgment in favor of the District of Columbia Housing Authority (DCHA). The plaintiff community association claimed that DCHA and other entities failed to pay assessments owed pursuant to the Declaration and Bylaws that govern the development. After successfully barring the equitable claims filed against DCHA in a motion to dismiss, a motion for summary judgment was filed on the one remaining breach of contract count. DCHA argued that the claim failed as a matter of law because the Declaration unambiguously waived DCHA’s liability for assessments. In opposition, the plaintiff argued there were contradictory clauses in the Declaration that a jury must reconcile. The Superior Court of the District of Columbia determined that DCHA was entitled to judgment in its favor as a matter of law, finding that there was no ambiguity in the language of the Declaration and opining that while DCHA is the legal owner in fee simple of the Community and Daycare Lot at issue, the Declaration’s definition of “owner” as it is used throughout the Declaration plainly excludes DCHA. The court concluded that because the plain language of the agreement unambiguously waives DCHA’s responsibility for paying assessments, the plaintiff’s breach of contract claim fails as a matter of law, and granted our Motion for Summary Judgment. This is a significant win for DCHA because the legal issues resolved in this matter potentially impact its obligations in many other affordable housing development projects.
Catherine A. Hanrahan and Kevin P. Farrell
Silvestri & Moleus Successfully Defend Utility Contractor: Expert Testimony Necessary to Establish Professional Standard of Care
Michael J. Silvestri (Of Counsel-Baltimore, MD) and Pascal Moleus (Associate-Baltimore, MD) obtained summary judgment in favor of a client utility contractor, resulting in dismissal of a negligence claim over a construction laborer who was involved in a manhole cover explosion at a construction site, resulting in serious injuries to the laborer’s head and abdomen and the amputation of two of the laborer’s right foot toes. In granting the motion, the Circuit Court for Baltimore City, Maryland, found that the laborer alleged professional negligence against the utility contractor but failed to produce required expert testimony establishing either the professional standard of care owed by the utility contractor or causation.
Michael J. Silvestri and Pascal Moleus
Piatkowski, Domaszek & Rivas Score Summary Judgment for Major Global Technology Company
Kelsi Wade Piatkowski (Of Counsel-Houston, TX), assisted by John Domaszek (Of Counsel-Houston, TX) and Servando Rivas (Associate-Houston, TX), secured summary judgment for one of the firm’s major global technology clients in a case in which the plaintiffs filed a lawsuit following an automobile accident alleging various claims, including vicarious liability and gross negligence, against our client. The plaintiffs further alleged that the incident resulted in a death of the decedent. The plaintiffs demanded $1 million to resolve the claims. However, after extensive briefing by both sides and oral arguments, the 127th District Court in Harris County, Texas granted Kelsi’s traditional and no-evidence motion for summary judgment, ordering all claims to be dismissed with prejudice and ordering that the plaintiffs take nothing of, from, or against our client.
Kelsi Wade Piatkowski and Servando Rivas
Shapiro & Maher Obtain Summary Judgment in Wrongful Death Case; Claims of Negligent Selection and Vicarious Liability over a Truck Driver
Beata Shapiro (Partner-Boston, MA) and Dennis Maher (Associate-Boston, MA) obtained summary judgment in favor of a client shipping company, resulting in dismissal of claims of negligent selection and vicarious liability over an independent trucking company and its driver, who was involved in a motor vehicle accident resulting in the death of a motorcycle driver. At the time of the accident the truck driver had completed delivery of the shipping company’s cargo and was on his way home in the truck. In granting the motion, the United States District Court for the District of Massachusetts found that any agency relationship or control by the defendant had ended prior to the accident, and that the truck driver was not acting within the scope of any employment or agency relationship when the accident occurred (as asserted by the plaintiff – the Estate of the motorcyclist). Additionally, the court found no evidence that our client was negligent in hiring or supervising the driver as his driving record did not document any accidents and our client had no reason to believe he was unfit to operate the truck. This decision is significant as it reinforces the principle that vicarious liability for the actions of independent contractors or agents does not extend beyond the scope of employment or agency, particularly when the individual is engaged in personal activities after completing work duties. The case provides valuable guidance for logistics contracts and structures.
Beata Shapiro and Dennis M. Maher
Darling Foils Plaintiff’s Plan to Hide History of Neck Pain
Stacey Darling (Associate-Portland, OR) defended the insured of a major insurance company client in a case where the policy limits were offered, but the plaintiff would not accept as there were codefendants in the case with a commercial policy. The underlying matter involved a series of auto collisions in December 2021 – insured by our client – and in June 2022 – involving codefendant who was in the course and scope of his employment. The plaintiff eventually underwent a cervical disc replacement surgery after the second collision, and retained an expert to testify at trial, rather than the treating provider. Stacey subpoenaed the treating provider to testify regarding the plaintiff's history of neck pain including a chronic pain management plan that involved taking opioids daily for at least the past 10 years. Right before the plaintiff rested, he accepted the previously tendered policy limits of $25,000 to avoid having his treating doctor testify.
Stacey B. Darling
DeLoach and Cheek Secure Summary Judgment for Building Owner in Slip and Fall Claim
G. Robert DeLoach (Of Counsel-Charlotte, NC) and Brad Cheek (Associate-Charlotte, NC) secured summary judgment in the Court of Common Pleas for the 13th Judicial Circuit, Greenville, South Carolina, for Wilson Elser’s client, the owner of a medical office building located on the campus of a hospital network. In this trip and fall matter, the plaintiff allegedly fell on a sidewalk she claimed was poorly maintained, suing our client and two other hospital entities. Bob and Brad succeeded on their motion for summary judgment with two persuasive arguments: Our client did not owe the plaintiff a duty to warn due to her admission when deposed that the condition of the sidewalk was open and obvious, and that the court’s prior granting of summary judgment pursuant to the co-defendant’s argument constituted res judicata as to the plaintiff’s claims against our client.
G. Robert DeLoach III and Brad Cheek
Lowry & Pattillo Win Summary Judgment for Retailer
Michael Lowry (Partner-Las Vegas) and Jonathan Pattillo (Associate-Las Vegas) obtained summary judgment in the United States District Court, District of Nevada, for a retail client named in a slip and fall action. The plaintiff alleged that customers were frequently stealing food by eating it inside the client’s store and then throwing the used containers on the floor, creating slip and fall hazards. However, there was no evidence that this alleged activity caused the hazard that the plaintiff found after her fall. The district court concluded that the plaintiff lacked evidence demonstrating the retailer had permitted a virtually continuous hazard to exist, granting Wilson Elser’s motion for summary judgment.
Michael Lowry and Jonathan C. Pattillo
Sexton Secures Rare Summary Judgment Win in GA Premises Liability Case Involving Shooting
Trace Sexton (Of Counsel-Atlanta) obtained summary judgment for a property management client in Fulton County State Court in a premises liability action arising from a shooting inside a tenant’s private apartment. The plaintiff alleged that while visiting the tenant, he shot her without warning. She further alleged that our client failed to conduct adequate background screening and should have known about the tenant's dangerous propensities.
Georgia courts rarely grant summary judgment in premises liability cases involving shootings, as judges typically find fact questions about foreseeability that a jury must decide. The plaintiff attempted to create a fact issue about background screening through discovery admissions, but Trace offered affirmative evidence that proper screening procedures were followed, successfully arguing that Georgia law imposes no duty on landlords to exclude individuals with criminal histories absent specific knowledge of danger – a key legal principle the court adopted in its ruling. They built an airtight record establishing that the client received no complaints about the tenant, no prior violent incidents occurred at the complex, and the client had entirely relinquished control over the tenant's private apartment.
The court’s order closely tracked Wilson Elser’s briefing, adopting the framework that landlords who fully part with possession under O.C.G.A. § 44-7-14 cannot be liable for unforeseeable tenant criminal acts. The judge specifically cited the same controlling authority highlighted in the defense briefs, including McCullough v. Reyes and the Sturbridge Partners, Ltd. v. Walker foreseeability standard. This outcome is exceptionally rare in Georgia, where the judicial tendency to find jury questions on foreseeability makes summary judgment in shooting cases one of the most difficult defense victories to achieve.
Kardis & Curtis Secure Summary Judgment for Client Using Winter Storm Doctrine
Theodore “Tad” Kardis (Of Counsel-St. Louis, MO) and Robert Curtis (Associate-St. Louis, MO) secured summary judgment on all claims against apartment complex owners involving a tenant who slipped and fell during a snowstorm. The plaintiff alleged he fell while walking to his car after stepping off the curb onto the snow-packed parking lot. The plaintiff testified he observed six inches of snow on the sidewalk at 8:20 a.m. when he walked out, but claimed snow was not actively falling despite meteorological evidence nine inches of snow fell between 4:00 a.m. through 2:30 p.m. Tad and Robert presented meteorological evidence the snow was falling, testimony from the apartment complex's employees, and the plaintiff's own pictures of falling snow taken contemporaneously with the fall. Tad and Robert argued the Winter Storm Doctrine, also known as the "Massachusetts Rule" barred the plaintiff's claim as a matter of law and the apartment complex had no duty to clear snow and ice during an active snowfall. The court held "if [the Winter Storm Doctrine] didn't apply in this case, then [the court] fail[s] to see cases where it would apply" and dismissed all claims.
Theodore A. Kardis and Robert Curtis
Young and Simpler Secure Dismissal of All Claims in Construction Defect Suit
Rebecca Young (Partner-Birmingham, AL) and Porter Simpler (Associate-Birmingham, AL) prevailed on a motion to dismiss in the Circuit Court of Benton County, Arkansas, in a construction defect case against Wilson Elser’s construction company client. The plaintiff alleged that a pool constructed by our client in 2018 had structural issues. Rebecca and Porter filed a motion to dismiss, based on the Arkansas five-year Statute of Repose. To avoid dismissal, the plaintiff amended the complaint, alleging the client fraudulently concealed the pool’s structural defects by covering them with concrete, thereby invoking a statutory fraud exception to the five-year time limit. Rebecca and Porter then filed a motion to dismiss the amendment, arguing that the plaintiff’s pleading still failed, as our client’s act of covering the pool's structural issues with concrete did not amount to fraudulent concealment under Arkansas law, which requires the alleged fraud to be "furtively planned and secretly executed." After additional briefing and oral arguments, the court dismissed all claims against the client.
Rebecca A. Young
Cole Secures Summary Judgment on Behalf of Construction Company in Negligence Case
Kammann S. Cole (Partner-San Diego, CA) secured summary judgment on behalf of a construction company in the San Diego Superior Court. The plaintiff sought damages for injuries resulting from a playground swing that was installed by the insured, alleging negligence for violating a statutory requirement forbidding the installation of the at-issue multiple occupancy swing. Kammann was able to get the case summarily dismissed by arguing the completed and accepted doctrine applied to the insured’s work on the playground.
Kammann S. Cole
Lowry Wins Summary Judgment for Fitness Club on Waiver
Michael Lowry (Partner-Las Vegas) won summary judgment in the Eighth Judicial District Court in Las Vegas for a fitness club client. The plaintiff, a club member, sued the client, alleging that he sustained injuries after slipping and falling while using the club’s facilities. Michael determined that the plaintiff’s membership agreement contained an assumption of risk regarding the use of the facility and a waiver of claims, prompting him to move for summary judgment at the outset of the case. The court concurred, granting Michael’s summary judgment motion and saving Wilson Elser’s client thousands of dollars in legal fees.
Michael Lowry
Russell & Chang Secure Dismissal of All Claims Against Housing Authority in Development Dispute
Angela W. Russell (Partner-Baltimore, MD) and Ellen E. Chang (Associate-Baltimore, MD) represented a city Housing Authority and its Executive Director in a multi-party dispute pending in the U.S. District Court, District of Maryland. The gravamens of the Complaint were allegations of federal and state constitutional violations in connection with a contract between a private developer and the City for the development of a neighborhood in the city limits. Several residents of the neighborhood charged the Housing Authority and the City, the private developer, and the City’s former mayor with engaging in a campaign to relinquish hundreds of residential properties to the developer by eminent domain, with no public benefit, and indefinitely encumbering the properties through restrictions to free market real estate and strategies to bypass zoning code regulations. Ellen served as the lead on the Motion to Dismiss for the plaintiffs’ failure to state a claim and argued the Motion asserting that the Housing Authority and its Executive Director are not subject to 42 U.S.C. § 1983 claims because the Housing Authority is a not State actor, government defendant, or entity that acted under color of law, and even if it were subject to a § 1983 claim, the factual insufficiencies of the Complaint failed to establish the plaintiffs’ entitlements to relief. In a memorandum opinion that addresses the Motion to Dismiss as well as the dispositive motions of the other defendants, the court found that the plaintiffs lacked standing and failed to state a claim as to each cause of action, which included violations of the Takings Clause, Equal Protection Clause, and Due Process Clause as well as nuisance and unjust enrichment. The court granted our Motion to Dismiss entirely, granted or granted/denied in part as moot the other defendants’ motions, and dismissed the Complaint.
Angela W. Russell and Ellen Chang
Nelson & Dutton Succeed in Appeal, Citing Client’s Up-the-Ladder Immunity
Jeremy J. Nelson (Of Counsel-Louisville, KY) and Cyrus G. Dutton IV (Associate-Louisville, KY) obtained dismissal on behalf of a client in a case in which the plaintiff, an employee of a food product distribution company, fell while offloading product into the client’s restaurant. Jeremy and Cyrus moved for summary judgment under Kentucky’s Workers’ Compensation Act, arguing that the client was entitled to up-the-ladder immunity under the Act. Specifically, they argued that the delivery of food inventory to the client’s restaurant was a regular and recurrent part of the client’s business. The U.S. District Court for the Eastern District of Kentucky granted the motion, dismissing the case with prejudice, and opposing counsel did not appeal.
Jeremy J. Nelson
Lowry & Zurkan Earn Voluntary Dismissal
Michael Lowry (Partner-Las Vegas, NV) and Ashley Zurkan (Associate-Las Vegas, NV) worked with a luxury homeowners’ association client to develop facts that led to a voluntary dismissal. A mobile dog groomer tripped on a sidewalk near a home, and it was initially unclear who controlled this part of the sidewalk. Michael and Ashley worked with the homeowners' association to begin developing facts supporting the HOA's position that the individual homeowner controlled this area. They then worked with the plaintiff to confirm repairs had occurred in the area and the homeowner paid for the repairs. With control confirmed, the plaintiff voluntarily dismissed the HOA and instead pursued the homeowner. This collaborative approach ultimately saved the parties time and money.
Michael Lowry and Ashley L. Zurkan
Lee & MacManus Prevail in Jurisdictional Dispute
Gregory Lee (Partner-Los Angeles, CA) and Carlos MacManus (Of Counsel-Los Angeles, CA) successfully defended an international owner and operator of destination ski resorts against a lawsuit filed in Los Angeles County by plaintiffs involved in a ski accident at a well-known ski resort in Colorado. Although the client is based in Colorado, the plaintiffs argued that general and/or specific jurisdiction could be exercised over the client in California based on the client’s purported operation and control over ski resorts in California, as well as marketing and advertisements targeting California residents and harm caused in California. The judge ultimately agreed with Greg and Carlos that the client was not subject to general or specific jurisdiction in California and dismissed the client. In addition, because the plaintiffs had placed all of their eggs in California’s basket, the Colorado statute of limitations expired while they fought to maintain jurisdiction over the client in California.
Gregory K. Lee and Carlos E. MacManus
Wolfberg Obtains Summary Judgment in Auto Vehicle Death Case
Daniel B. Wolfberg (Of Counsel-Los Angeles, CA) secured a summary judgment for a vehicle owner in Superior Court of California, County of Orange. The plaintiffs (mother, father, and sister of the decedent) sued our client after the decedent took our client’s car without authorization and then crashed and died in that car. The plaintiffs blamed the decedent's passing on our client and on a personal car-sharing platform for allegedly allowing plaintiffs' decedent to drive the car.
Daniel B. Wolfberg
Lowry & Tarzi Earn Defense Decision for Resort Hotel & Casino
Michael Lowry (Partner-Las Vegas, NV) and Patrick Tarzi (Associate-Las Vegas, NV) successfully defended a Las Vegas resort and casino against a property theft claim filed by a guest. The guest alleged certain items were stolen from his room. However, Patrick pointed out that the guest had not used the in-room safe nor did he attempt to deposit the items with the hotel for safekeeping. As a result, the Las Vegas Justice Court, Small Claims concluded the guest had not meet his burden of proof under NRS 651.010. A defense decision was entered.
Michael Lowry and Patrick O. Tarzi
Martin Obtains Dismissal with Prejudice on Labor Law 240(1) Matter
Tyler Martin (Associate-New York, NY) defended a property owner / private entity client two years after a first case was discontinued, as the plaintiff sued the incorrect owner entity in 2023. The second suit against our client alleged that the plaintiff fell from a scaffold in the course of his employment on the same date of loss as alleged in the first lawsuit. Prior to the commencement of the second action, our client obtained a signed release from the plaintiff, discharging our client and other entities, including the plaintiff’s employer. The plaintiff received monies in relation to the accident. Nonetheless, he refused to voluntarily discontinue the case despite our good faith efforts. The Supreme & County Court of Westchester County held that we met our burden of establishing that the plaintiff properly released our client by virtue of the four corners of the signed agreement. The burden then shifted to the plaintiff who failed to establish that the release was signed due to fraud, duress, or any other fact to void the release. The plaintiff’s main argument in opposition was that he allegedly did not read English and could not appreciate what he was signing. He also argued that he was not advised by anyone that he could retain counsel, claiming he would not have signed the release. Tyler’s reply emphasized the undisputed facts that plaintiff admitted signing the release and admitted receiving payment in exchange, which he never returned. Tyler also highlighted that the plaintiff never asked for the release to be translated into Spanish or alleged any misrepresentation of the contents of the release, and pointed to recent Second Department caselaw regarding the types of challenges to releases in similar cases. The court granted a dismissal with prejudice on a Labor Law 240(1) matter, after granting Tyler’s pre-answer motion to dismiss pursuant to CPLR 3211(a)(5).
Tyler J. Martin
Young Secures Summary Judgment on All Claims in Wrongful Death, Catastrophic Injury Resulting from Pile-Up Accident
Rebecca Young (Partner-Birmingham, AL) secured a third summary judgment win for a global pharmaceutical distributor client arising out of a pile-up accident caused by a tractor trailer that collided with several vehicles, which resulted in the death of an 11-year-old girl and catastrophic physical injuries to nearly a dozen other people. The plaintiffs sued for negligent and wanton selection and supervision, alleged failure to comply with Federal Motor Carrier Safety regulations, and failure to provide and verify insurance. Rebecca argued that all claims against the client were preempted under the Federal Aviation Administration Authorization Act of 1994 (FAAAA). The U.S. District Court, Middle District of Alabama agreed and entered summary judgment in two related cases covering 11 plaintiffs’ claims and the wrongful death action. This third action was brought by the sister of the young girl that died, who was also a passenger in the vehicle and suffered substantial injuries. In attempting to defeat summary judgment in this third case, plaintiff’s counsel argued that the Eleventh Circuit law of federal preemption relied on by the defense was narrowly tailored and only applicable to claims involving cargo theft, and not claims that involve tort claims for personal injury. Rebecca responded to this argument by directing the court to new precedent from the Eleventh Circuit, which found such arguments to be unavailing and specifically applied FAAAA preemption in the personal injury context.
Rebecca A. Young
Stoberski & Adams Prove Client Had No Obligation to Collect Debt from Past Tenants
Michael Stoberski (Of Counsel-Las Vegas, NV) and Nicholas Adams (Associate-Las Vegas, NV) prevailed on a motion for summary judgment in District Court for Clark County, Nevada, against all claims brought against Wilson Elser’s clients over management of an apartment complex. Joseph Laird (Partner-White Plains, NY) collaborated in the defense of the case. The plaintiff alleged breach of contract and breach of the duty of good faith and fair dealing and sought declaratory relief concerning the rights and obligations under the property management agreement. Competing motions for summary judgment were filed arguing different interpretations of the property management agreement. Mike and Nicholas demonstrated, under the property management agreement, that our clients had no obligation to collect debt from past tenants and damages were precluded based on the breaches alleged. Before the scheduled oral argument, the district court issued its order agreeing entirely with the interpretation put forth by our clients. As a result, summary judgment was granted as to all claims and the hearing was vacated bringing this case to a successful resolution.
Michael E. Stoberski and Nicholas F. Adams
Kardis & Curtis Resolve Premises Liability Matter After Years of Litigation and Multiple Lawsuits
Theodore “Tad” Kardis (Of Counsel-St. Louis, MO) and Robert Curtis (Associate-St. Louis, MO) secured summary judgment on all claims against apartment complex owners arising out of a slip and fall involving a tenant in a common area of the complex. The plaintiff alleged he fell on snow and ice in an indoor stairwell where a door to the outside was cracked open, and snow and ice were allowed to accumulate inside the stairwell. The plaintiff also claimed he notified the property manager of the alleged situation. Tad and Robert hired a forensic meteorologist to discuss the weather conditions at the apartment complex on the day of the alleged slip and fall. The forensic meteorologist demonstrated there was no such accumulation that could have led to the conditions plaintiff described. Further, Tad and Robert presented recordings demonstrating the plaintiff did not notify the property manager of the alleged accumulation. They successfully leveraged the plaintiff's multiple inconsistent statements regarding being both inside and outside during the fall as well. Finally, Tad and Robert argued plaintiff's failure to designate medical experts on his injuries allegedly requiring surgery meant the plaintiff could not prove medical causation of his injuries from the fall because of preexisting conditions. The Jackson County, Missouri, Circuit Court held plaintiff could not establish his claims as a matter of law. As a result, the court granted summary judgment on all counts which brought a successful resolution to the matter after several years of litigation and multiple lawsuits.
Theodore A. Kardis and Robert Curtis
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Events
Weiner Obtains Complete Dismissal of Case Against Security Firm Client
Eian Weiner (Associate-White Plains, NY) successfully secured dismissal of all claims in a lawsuit involving allegations of excessive force and constitutional violations by private security personnel employed by a firm client. The plaintiff alleged that, while visiting a public services office, he was approached and assaulted by aggressive security guards following a dispute over a pocketknife he had voluntarily surrendered and accusations that he was smoking marijuana on the premises. He claimed that the guards became aggressive and physically restrained him, causing injuries, and further alleged that his constitutional rights were violated under 42 U.S.C. § 1983. Additional claims were asserted for false arrest, false imprisonment, malicious abuse of process, defamation, and negligence. Eian moved to dismiss the complaint under CPLR 3211, arguing that the tort claims were time-barred under the applicable one-year statute of limitations, that the constitutional claims failed as a matter of law because the private security personnel were not state actors, and that the negligence claim was improper as it was predicated on conduct alleged to be intentional. The Supreme Court, Suffolk County, granted the motion in full, holding that the tort claims were untimely, the § 1983 claims failed as a matter of law, and the negligence and defamation claims were legally and factually unsupported. After also granting the county defendants' motion, the court dismissed the case in its entirety.
Eian S. Weiner
Krauss & Pegno Awarded Summary Judgment in Premises Liability Matter Dismissed with Prejudice
Kurt Krauss (Partner-Madison, NJ) and Kristine Pegno (Of Counsel-Madison, NJ) defended a property owner in a case involving a claim for injury resulting from a fall on premises owned by the client, who had leased the property under the terms of a triple net lease to the tenant, including a provision that all maintenance and repairs were the responsibility of the tenant. The plaintiff was working on the subject premises as a truck driver at the time of his accident and had already brought a workers’ compensation claim against his employer when he separately sued our client. The initial summary judgment motion was denied based on what the judge found to be an issue of fact regarding whether there was one or more lessees under the master lease agreement. Following additional discovery and several other related motions, the motion for summary judgment was refiled. Based on the fully developed record, Union County Superior Court found that the terms of the lease placed all responsibility for maintenance and repair on the tenant and that, under such circumstances, the property owner owed no duty to the plaintiff as a matter of law. The court separately granted Summary Judgment as to Count II of the Complaint, which was a negligent construction claim, finding that the plaintiff’s admissions in discovery about the location of his fall rendered the claim legally untenable. As such, this was a terrific win for our client!
Kurt W. Krauss and Kristine Y. Pegno
Hanrahan & Choren Persuade D.C. Superior Court to Grant Dispositive Motion
Catherine Hanrahan (Partner-Washington, DC) and Pernell “Perry” Choren (Senior Associate-Washington, DC) obtained dismissal of the plaintiff’s Complaint in the Superior Court of the District of Columbia on behalf of a local government agency and one of its employees after filing a motion to dismiss based on the plaintiff’s failure to provide timely pre-litigation notice. Catherine and Perry filed a motion to dismiss that argued that the plaintiff’s Complaint must be dismissed for her failure to comply with the strict notice requirements of D.C. Code § 6-205(a). In an oral ruling, the Court found Catherine and Perry’s arguments persuasive and ruled that the plaintiff’s Complaint is barred by her failure to provide compliant § 6-205(a) before filing suit. Accordingly, the court granted the motion and dismissed the plaintiff’s claims. This is the seventh dismissal that Catherine and Perry have secured on behalf of this same client in the past year and a half.
Catherine A. Hanrahan and Pernell A. Choren
Shapiro, Del Gatto, and Kim Obtain Summary Judgment for Commercial Tenant in Trip-and-Fall Case with Proactive Motion Practice
Beata Shapiro (Partner-Boston, MA), Brian Del Gatto (Partner-Phoenix, AZ), and Anne Kim (Associate-Boston, MA) defended a major national commercial tenant in a trip-and-fall case in the Suffolk County Superior Court in Boston. The plaintiff alleged that she fell on a sloped surface in the parking lot of the property after attending a ticketed event hosted by the firm’s client, and asserted claims of negligence and failure to warn. The firm’s client was added as a party to the case after discovery was conducted of the plaintiff and the co-defendants, the property owner, and the general contractor that installed the slope as part of an ongoing construction project at the site. Beata, Brian, and Anne moved for summary judgment as to all claims, before incurring the costs of answering the complaint or participating in discovery, on the grounds that the firm’s client did not have control over the parking lot under the terms of the lease and had no notice of the presence of the slope. Summary judgment was granted as to all claims against the firm’s client, over opposition, and the plaintiff has not appealed within the time permitted. This proactive approach saved the clients time and litigation expense and the possibility of a large damage award.
Beata Shapiro, Brian Del Gatto and Anne V. Kim
Jolley and Young Obtain Dismissal for Multinational Corporation Based on Failure to Establish Agency
Eleanor Jolley (Partner-Atlanta, GA) and Rebecca Young (Partner-Birmingham, AL) obtained dismissal of all claims made against a multinational energy corporation accused of negligently and wantonly allowing the plaintiff to be brutally assaulted at two of its fuel-branded gas stations. Eleanor and Rebecca argued that all of the claims were time-barred and that the plaintiff had failed to prosecute the claims by failing to properly serve the complaint on the appropriate legally recognized agent. The plaintiff argued that his service on an individual owner for one of the fuel stations was sufficient service. In response, Eleanor and Rebecca maintained that there was insufficient evidence to show the level of control necessary to establish agency and that an alleged parent-subsidiary relationship alone was insufficient to establish agency for purposes of effectuating service of process. Following briefing and oral argument, the Circuit Court of Tuscaloosa County, Alabama, granted our dispositive motion dismissing all the claims with prejudice.
Eleanor G. Jolley and Rebecca A. Young
Young and Makarenko Secure Summary Judgment for National Retailer in Premises Liability Case
Rebecca Young (Partner-Birmingham, AL) and Alexander Makarenko (Associate-Birmingham, AL) won summary judgment for a national retailer client that faced various premises liability claims following an injury caused during construction to the entryway of the retail store. The plaintiffs’ claims included negligence and wantonness, invoking punitive damages. Additionally, the plaintiff sought more than half a million dollars for medical costs, pain, suffering, and future limitations. Rebecca and Alex filed a motion for summary judgment on all claims, arguing that the plaintiff failed to properly establish that her injury was caused by the allegedly dangerous conditions at the entrance of the store, that the defendant had fulfilled its duty to warn of the construction conditions, and that the plaintiff could have avoided injury by exercising reasonable care. After briefing and oral arguments, the Madison County Circuit Court, agreed that summary judgment was appropriate and disposed of all claims.
Rebecca A. Young and Alexander V. Makarenko
Castilla Obtains Summary Judgment in Premises Liability Case
Mirelis Castilla (Of Counsel-Miami, FL) secured summary judgment on behalf of our global real estate client in a case involving a fall within a landscaped island area. The plaintiff contends that our client “knew or with the exercise of reasonable care should have known, that individuals or invitees would be in the area where the plaintiff fell and that the unsafe condition of the ground in said area would create an unreasonable risk and hazard to the safety of said invitees” and that our client owed the plaintiff a duty of care to “maintain the ground in the plaza in a reasonably safe condition, specifically to ensure that the subject ground/grass area is not unsafe, causing a hazardous condition to occur.” The plaintiff also contends that as a result of the actions and/or inactions of our client, her injuries are either permanent or continuing in nature and she will suffer the losses and impairment in the future. However, Mirelis argued, the plaintiff’s claim is in direct conflict with the applicable and well-settled Florida case law regarding lack of landowner liability for incidents occurring in landscaping areas. As such, our client cannot be held liable for the alleged injuries and resulting damages. The Circuit Court, Eleventh Judicial Circuit, Miami-Dade County, Florida, agreed and issued summary judgment in our client’s favor.
Mirelis Castilla
Lowry and Brown Achieve Nuisance Settlement
Michael Lowry (Partner-Las Vegas, NV) and Kevin Brown (Of Counsel-Las Vegas, NV) worked to develop facts leading to a nuisance-value settlement in a case in which a high-school student attempted to cross six lanes of traffic on a main thoroughfare. His alleged actions were much like a real-life game of Frogger. When the plaintiff tried to cross the sixth lane, he was struck by a car owned by a pre-owned vehicle dealer and driven by a vendor who was taking it to his shop to prepare it for sale. The teen sued the driver alleging significant injuries. He also sued the dealer alleging negligent entrustment. An entrustment clearly occurred, but Michael and Kevin worked with the dealer to develop facts demonstrating the entrustment was not negligent. Once these facts were developed, the teen accepted a nuisance value settlement rather than litigate summary judgment.
Michael Lowry and Kevin A. Brown
Felder and Patillo Obtain Favorable Ruling for Jet Ski Rental Company in Wrongful Death Case
Otis Felder (Partner-Los Angeles, CA) and Jonathan Patillo (Associate-Las Vegas, NV) obtained a favorable ruling from the United States District Court for the District of Nevada, which denied a motion for sanctions against our client jet ski rental company in a wrongful death lawsuit. The plaintiffs had sought spoliation sanctions, alleging that the rental company failed to preserve video footage related to a 2020 jet ski rental transaction. Wilson Elser was brought in after the original counsel failed to bring a limitation action in federal court. The court ruled in favor of the rental company, finding that the plaintiffs failed to establish a duty to preserve the footage at the time it was automatically deleted. Through their representation, Otis and Jonathan were able to show the court that the company acted properly and in good faith throughout this process. The denial of sanctions eliminates any adverse inference against the company and strengthens its defense as the case proceeds. The case also is significant in discussing the various standards with respect to preservation of evidence and issues concerning spoilation.
B. Otis Felder and Jonathan C. Pattillo
Greenfield Obtains Appellate Victory on Behalf of Largest Casino Operator in New York City
Benjamin Greenfield (Partner-Philadelphia, PA) obtained a unanimous decision from the First Department Appellate Division, upholding denial of the plaintiff’s motion to certify its action as a class action on behalf of the largest casino operator in New York City. The plaintiff was banned from the casino for smashing a gaming machine and his refusal to pay for the damage. The plaintiff attempted to certify his claims as a class action, arguing that the casino improperly demands restitution and threatens arrest if patrons refuse to pay for the costs of repairs to the property they damaged. The trial court, in denying plaintiff’s Motion to Certify, ruled that NYS Gaming Bulletin #22, which requires casinos to detain individuals suspected of damaging casino property and to conduct an individualized investigation into the actions of each patron, is “a valid directive issued by the Gaming Commission that is legally binding on [the casino] and governs and authorizes certain actions by [the casino].” The Appellate Division affirmed this decision and specifically rejected the plaintiff’s contention that in publishing Bulletin 22, the Gaming Commission did not follow the rulemaking procedures set forth in the State Administrative Procedure Act, and agreed with the arguments set forth by Ben that the plaintiff’s claims involved unique circumstances that do not mirror those underlying the claims of the class proposed. Accordingly, the Court agreed that typicality is lacking and certification would not be proper. This is a notable decision that thwarts an attempted significant class action. At the very early stages of this matter, the plaintiff’s attorneys attempted to force our client into an early settlement by having an article published in the New York Post.
Benjamin D. Greenfield
Lowry and Nelson Secure Voluntary Dismissal for National Restaurant Chain
Las Vegas partner Michael Lowry and associate Kimberly Nelson earned a voluntary dismissal for their national restaurant chain client sued in Las Vegas. Two guests were dining when their table collapsed on them. The restaurant was being renovated at the time but there were problems identifying the applicable contractor and contract. Michael and Kimberly used the discovery process to identify the contractor and locate the contract, and then persuaded the plaintiffs to add the contractor as a defendant. This led to a global settlement that the contractor funded. The case was ultimately dismissed without any indemnity from the firm's client.
Michael Lowry and Kimberly A. Nelson
Russell and Belanger Obtain Defense Verdict in Favor of Major Hotel and Casino against Security Guard Allegations
Baltimore, Maryland, partners Angela Russell and Emily Belanger obtained a defense verdict in Prince George’s County Circuit Court in Maryland. The plaintiffs filed suit against the firm’s client, a major hotel and casino, after allegedly being assaulted, battered, and falsely imprisoned by security guards. The plaintiffs also alleged negligent training and supervision, gross negligence, and punitive damages. The court dismissed the gross negligence, negligent training and supervision, and punitive damages claims on a Motion for Judgment that was argued at the close of the defense case. The jury deliberated on the intentional tort claims. The plaintiffs relied most heavily on a 30-minute video where the plaintiffs are seen being “roughed up” by three security guards after one of the plaintiffs refused to cooperate with an investigation. The encounter was initiated because the plaintiffs were suspected of defrauding the casino. The jury deliberated for 30 minutes before returning a defense verdict.
Angela W. Russell and Emily Belanger
Del Gatto and New Jersey Team File Unassailable Motion in Wrongful Death Case
Brian Del Gatto (Partner-Phoenix, AZ) and a Madison, New Jersey, team comprising partner Andrew Heck, of counsel Elyse Tormey, and associate Mellis Bakir, defended a wrongful death case in which the bus driver closed the front door on the decedent’s arm and drove away, causing the decedent to fall and be run over. He died several days later in the hospital, allegedly as a result of his injuries. The plaintiff sued our Canadian client, the largest municipal bus manufacturer in North America and the successor in interest to the legacy manufacturer of the bus, claiming product liability based on the allegation that the accident was a result of the door's defective design. After setting the tone early with extensive pre-answer motion practice, extensive discovery followed. Brian and the team moved for summary judgment after the discovery deadline lapsed, prior to the setting of any trial date, based on a number of grounds, including that expert testimony was necessary but lacking, and that expert opinion, even if it had been provided, would fatally lack sufficient factual support. The team strategically filed a summary judgment motion prior to its due date, so that it would be pending at the time another hearing would be conducted, at which they suspected efforts may be made to blow out discovery deadlines. When that suspicion proved accurate, the team leveraged the prejudice that would arise from extending discovery after we showed our hand in filing our motion into a prohibition on new discovery being admissible with respect to the client. Lacking the ability to use new discovery to right the ship and faced with an unassailable motion, all adversaries permitted that motion to proceed unopposed, and summary judgment was entered on the client's behalf. This aggressive strategy saved the client – which had a high self-insured exposure – significant defense costs for trial, as well as the always possible, albeit remote, adverse shock verdict.
Brian Del Gatto, Andrew J. Heck, Elyse S. Tormey and Mellis Bakir
Subick and Levasseur Secure Summary Judgment for Largest Private-Sector Transit Operator in North America
New York City Of Counsel Saige Subick and Partner Guy Levasseur obtained summary judgment for our private-sector transit operator client on liability dismissing a New York state court case in which a bus passenger claimed catastrophic injuries after a bus stopped suddenly when cut off by a vehicle that fled the scene. The court found Saige and Guy met the burden of proof in showing an emergency doctrine situation existed as a result of the actions of the non-party vehicle. Saige appeared for oral argument three separate times for several hours overall, as there were multiple judges who were assigned to the case. The plaintiff alleged a shoulder injury and a stroke such that he has not worked since April 2021. The potential exposure/sustainable value exceeded $3 million. The decision is even more rewarding as the plaintiff’s counsel had improperly moved for sanctions, preclusion, and to strike our answer for the alleged failure to provide all discovery sought (that motion was denied but only after more than a year of motion practice).
Saige A. Subick and Guy J. Levasseur
Guzik and Levasseur Secure Summary Judgment for Largest Private-Sector Transit Operator in North America
New York City partners Adam Guzik and Guy Levasseur obtained summary judgment for the firm’s client, the largest private-sector transit operator in North America, in New York Supreme Court, Nassau County. The matter involved a bus passenger who was injured when our client’s bus veered into a guardrail on the side of the road after a steering component failed. The court found Guy and Adam met the burden of proof in showing an emergency doctrine situation existed as a result of the sudden loss of steering with no notice, and where evidence in the form of more than 1,800 pages of maintenance records indicated the bus was well maintained. The plaintiff's expert report in opposition was deemed to be purely speculative. The sustainable verdict value at trial could have exceeded $3 million.
Adam C. Guzik and Guy J. Levasseur
Breen, Greene, and Endler Secure Dismissal of Client Substituted for a “John Doe” Defendant
Brian F. Breen (Partner-Philadelphia, PA), Nigel A. Greene (Of Counsel-Philadelphia, PA), and Jesse M. Endler (Of Counsel-Philadelphia, PA) secured dismissal with prejudice of all claims against a commercial property owner in a case arising out of a fatal shooting in a robbery gone wrong that occurred in our client’s parking lot adjacent to a gentlemen’s club the decedent had just patronized. When the plaintiff (the estate) filed suit, they initially named as defendants in the complaint the club and those entities associated with the club’s property and unknown "John Does." However, during discovery, but after the statute of limitation ran, the plaintiff (and co-defendants) realized that the actual location of the shooting was on an adjacent property owned by our client. There were significant issues with service, including due diligence, reinstatement, location, manner, and receipt of service. Further, the amendment of the complaint to substitute our client for a John Doe defendant was improper under the rules because it was not a like-for-like substitution. New and additional facts were pleaded against our client, while retaining the same allegations against the replaced John Doe.
The Philadelphia team’s involvement arose very late and mere days before the pre-trial conference and about a month before trial was scheduled to begin. They filed an omnibus motion for relief challenging service of original process and the amendment to join our client. The Court agreed with our argument.
Brian F. Breen, Nigel A. Greene and Jesse M. Endler
Carroll Established Plaintiff’s Injuries Unrelated to the Accident
Kristen Carroll (Partner-New York, NY) defended a tractor-trailer owner in a case where the plaintiff filed an action to recover for personal injuries allegedly sustained in a motor vehicle accident on the New York State Thruway, where our client’s tractor-trailer truck allegedly rear-ended the plaintiff’s vehicle. In addition to cervical and lumbar injuries, the plaintiff claimed three separate surgeries in relation to the accident, including a total knee replacement. The Supreme Court of the State of New York, County of Dutchess held that our client established, prima facie, that the plaintiff’s injuries were degenerative and unrelated to the accident through expert reports from a biomechanist (biology and physical mechanics to understand human movement) and orthopedist, as well as the plaintiff’s own medical records. Fatally, the plaintiff’s opposition did not include any medical records dated after her January 2020 knee surgery to objectively support any ongoing limitations, failing to raise a triable issue of fact that her alleged limitations were permanent or significant. The court noted that the plaintiff did not address the records submitted by our client regarding her knee replacement, which indicated that the basis for the surgery was “arthritis” with no reference to the accident. The court specifically cancelled jury selection in its decision, which was scheduled for March of 2025.
Kristen A. Carroll
Washburn and Resnak Obtain Summary Judgment in Common Carrier Injury Case
Lee Washburn (Partner-Atlanta, GA) and Alex Resnak (Associate-Atlanta, GA) obtained summary judgment in a personal injury case against our client, an international operator of governmental transit systems, in the State Court of Gwinnett County, Georgia. The plaintiff fell while riding on a transit authority bus system. Despite the heightened duty owed to the plaintiff by a common carrier, Lee and Alex obtained summary judgment in the client's favor by demonstrating the plaintiff's fall was the result of her own assumption of the risk and failure to take reasonable precautions for her own safety by standing on the bus without holding on to any of the available handholds.
Lawrence Lee Washburn, IV and Alex F. Resnak
Pfeifer and Nunn Reject Retailer’s Attempt to Arrange Global Settlement, Obtain Summary Judgment
Russell M. Pfeifer (Partner-Miami, FL) and Emma Nunn (Associate-Miami, FL) obtained final summary judgment in favor of a product manufacturer in a slip-and-fall lawsuit filed by the largest personal injury firm in Florida. After nearly one year of litigation between the plaintiff and a large retail establishment, the retailer forced the plaintiff into amending her complaint, adding our client to the suit. The allegations, mainly advanced by the retailer, were that the water in which the plaintiff slipped and fell most likely came from our machine; and further, the subject machine had a long history of leaking water. Russell and Emma vigorously defended these claims and ultimately made the plaintiff’s case against the retailer since by their own admission, if the subject machine had issues, it should have been their responsibility to take it out of service and have it repaired. Russell and Emma proved that our client had no knowledge of any defect in the subject machine and that the retailer had in place a system to call for maintenance through a portal. The service records did not support any claim that the machine had issues when the accident occurred and ultimately neither the plaintiff nor the retailer adduced any evidence to support a claim of product liability. Following an unsuccessful mediation, the retailer followed up several times pleading to contribute toward a global settlement and to accept its tender of defense and indemnity. Russell and Emma refused to do so and instead sought summary judgment, which was granted.
Russell M. Pfeifer
Kemper Obtains Complete Vindication of Rehab Center in Van Accident
Doug Kemper (Of Counsel-Louisville, KY) represented a drug rehabilitation center and its insurer in litigation involving a three-vehicle accident that resulted in catastrophic injuries to the 11 passengers in our client’s van, many of whom were ejected from the vehicle during the accident. Although it was clear that the accident was caused by one of the other drivers, all 11 plaintiffs joined liability claims against the rehab center and its driver. After settling the liability claims against the at-fault driver and the Underinsured Motorist carrier, the plaintiffs took aim at our client seeking to open the door to a $2 million liability insurance policy. The plaintiffs claimed there were not enough working seatbelts and that our driver had a duty to make sure everyone was belted before driving the van. After extensive discovery and motion practice, 9 of the 11 plaintiffs voluntarily dismissed their claims against our client and Doug prevailed on summary judgment to dismiss the claims of the 2 remaining plaintiffs, resulting in complete vindication of our client’s position.
W. Douglas Kemper
Felder Obtains Dismissal of a Marina on a Demurrer
Otis Felder (Partner-San Francisco, CA) obtained dismissal of a marina on a demurrer sustained before the Shasta County Superior Court. In this case, plaintiff alleged he fell off the top deck of a houseboat where he had ventured during the night with a female companion (not his wife) before he had to turn himself in the next morning to serve a prison sentence. In his complaint, he alleged that a deck railing, which appeared perfectly safe, gave way when he leaned on it while engaging in a social activity. The co-defendant grandmother houseboat owner provided in her responses to interrogatories that she had not given the plaintiff permission to "recklessly have drunken intercourse on the roof of the houseboat." While the court denied judicial notice of the grandmother's testimony, it sustained the demurrer finding that generally one does not owe a duty to control another or to warn of endangerment by conduct of other. It stated an exception to this "no-duty-to-protect" rule exists for cases in which the defendant has a special relationship with either (1) the dangerous third party that entails an ability to control them (e.g., parents and children, colleges and students, employers and employees) or (2) the victim where the victim expects protection from the defendant. In this case, the court rejected that the defendant marina had the ability to control the houseboat owner with respect to maintenance of the railing and that there was no special relationship between it and the plaintiff. As no facts could be alleged to create such a relationship, the court sustained the demurrer without leave to amend.
B. Otis Felder
Gallay and Vitagliano Secure Defense Verdict for Police Officer After Ten-Year Battle
Michael Gallay (Partner-White Plains, NY) and John Vitagliano (Associate-White Plains, NY), assisted by office paralegal Michelle Natoli, obtained a defense verdict in the New York, in favor of Wilson Elser’s client, a Nassau County police officer, successfully concluding a contentious ten-year legal battle. The plaintiffs in this matter brought suit on behalf of the decedent, who died as a result of head injuries sustained in a motorcycle collision. The plaintiffs allege that our client and his partner (co-defendant with outside counsel) recklessly engaged in an unwarranted pursuit of the decedent for a low-level offense without flashing lights or a siren, causing the decedent to flee from the approaching SUV, which he allegedly didn’t recognize as a police vehicle. Our client and his partner observed the decedent riding a motorcycle after midnight without illuminated headlights or taillights. When the officers attempted to stop the decedent for a VTL (vehicle and traffic law violation) by turning on the vehicle’s flashing lights, he fled at high speed, proceeding through two stop signs and colliding with a car crossing the intersection. Wilson Elser contended that the client did not pursue the motorcycle when it sped away but proceeded in the same direction, arriving at the collision site soon after it occurred. Mike presented expert accident reconstruction testimony, establishing that the decedent was traveling 60 mph in a 30 mph zone just before the collision and that only the motorcycle’s rear brakes were applied, preventing the decedent from stopping in time to avoid the collision. After deliberations, the jury found that the decedent’s actions were the sole cause of the crash.
Case Note: Mike stepped in for trial after Janine Mastellone managed the file for 10 years through extensive discovery and multiple motions against a very contentious plaintiff’s attorney.
Michael E. Gallay and John A. Vitagliano
Dodrill Obtains Summary Judgment on Negligent Hiring, Training, and Supervision Claims in Catastrophic Trucking
Colt Dodrill (Of Counsel-Phoenix, AZ/Las Vegas, NV) obtained summary judgment in Elko, Nevada District Court on negligent hiring, training, and supervision claims against the firm’s client trucking company. When plaintiff sought to conduct discovery into our client’s policies and procedures in an accident casem Colt moved for summary judgment arguing the negligent hiring, training, supervision claims were redundant and irrelevant because the driver’s course and scope were admitted. At oral argument, Colt challenged plaintiff’s reliance on intentional tort cases where course and scope were disputed. The court agreed and entered summary judgment on plaintiff’s redundant claims. This rendered moot the plaintiff’s proposed 30(b)(6) deposition of our client, and will shave one or two days off the trial allowing the jury to focus on the client’s defenses.
Colt B. Dodrill
Dodrill and Vance Put Brakes on Wrongful Death Action Against Car-Sharing Platform
Colt Dodrill (Of Counsel-Phoenix, AZ) and Jenna Vance (Associate-Phoenix, AZ) prevailed on summary judgment in Maricopa County Superior Court in $4 million wrongful death suit against clients car sharing platform and vehicle owner. Following a fatal single-vehicle rollover accident, parents of a deceased passenger filed suit against our clients and driver claiming vicarious liability, negligent entrustment, and negligent maintenance of the vehicle. Colt successfully argued, as an issue of first impression, that Arizona’s car sharing statutes immunize platforms from vicarious liability. Colt also argued that the plaintiffs’ negligent entrustment claim failed because the age of a licensed driver is not relevant, nor is the clients’ young driver surcharge an admission of the drivers’ incompetence. Colt refuted the plaintiffs’ speculative spoliation claims by reminding the court there was no suggestion of mechanical failure in the record, nor had the plaintiffs proffered an expert opinion. After taking the matter under advisement and reviewing the vehicle’s maintenance records, the court entered summary judgment in favor of our clients, finding driver error the sole cause of the accident, obviating the need for contentious client depositions, a costly trial, and extensive exposure.
Colt B. Dodrill
Farrell and Coffman Secure Dismissal of All Claims Against Military Defense Contractor
Kevin Farrell (Partner-Washington, DC) and Daniel Coffman (Associate-Washington, DC) prevailed on a motion to dismiss on behalf of a United States military defense contractor after a plaintiff attempted to add the contractor to a suit regarding the loss of plaintiff’s security clearance. The motion to dismiss demonstrated that the tortious interference and other claims against Wilson Elser’s client were barred by the statute of limitations. The plaintiff argued that several exceptions applied, including that his claims were timely because the D.C. Superior Court’s COVID-19 orders tolled the statute of limitations. While noting that the relevant orders were not a model of clarity, the U.S. District Court for the District of Columbia agreed with Dan and Kevin’s concise analysis of the D.C. Superior Court’s COVID-19 orders, and found that the claims were time-barred. The court further determined that (1) the continuous tort doctrine does not apply to the plaintiff’s claims, (2) the Federal Rules of Civil Procedure’s joinder rules have no bearing on whether the plaintiff’s claims are timely, and (3) under Federal Rule of Civil Procedure 15 the plaintiff’s claims did not “relate back” to his first complaint because his failure to timely add the contractor as a defendant was not the type of mistake Rule 15 was meant to remedy. All claims against Wilson Elser’s client were dismissed with prejudice.
Kevin P. Farrell and Daniel R. Coffman
Hanrahan and Choren Persuade Plaintiff’s Counsel to Voluntarily Dismiss Case Based on Pending Motion to Dismiss
Catherine Hanrahan (Partner-Washington, DC) and Pernell “Perry” Choren (Senior Associate-Washington, DC) recently persuaded plaintiff’s counsel to voluntarily dismiss all claims asserted against their client after filing a motion to dismiss based on the plaintiff’s failure to provide timely pre-litigation notice. Their client, a local government agency, was sued pertaining to the operation and management of a large residential property. Catherine and Perry filed a motion to dismiss that argued the plaintiff’s complaint must be dismissed for her failure to comply with the strict notice requirements of D.C. Code § 6-205(a). Plaintiff’s counsel found Catherine and Perry’s arguments persuasive and agreed to voluntarily dismiss all claims with prejudice. This is the sixth dismissal that Catherine and Perry have secured on behalf of this same client this calendar year.
Catherine A. Hanrahan and Pernell A. Choren
Bashor and Wyatt Secure Rare Summary Judgment in Hotel Fire Case
Karen L. Bashor (Partner-Las Vegas, NV) and Elisa Wyatt (Of Counsel-Las Vegas, NV) secured a rare summary judgment in Las Vegas, Nevada, a notoriously plaintiff-friendly jurisdiction, in a fire case. The plaintiff initially brought suit claiming negligence and negligent hiring, training and supervision for injuries related to a three-alarm fire in the pool area of our client casino/ resort hotel. Through targeted discovery and expert preparation on behalf of the firm’s client, Karen and Elisa efficiently and aggressively litigated this case and postured it for dismissal by the court.
Karen L. Bashor and Elisa L. Wyatt
Birmingham Team Obtains Dismissal of Tort Claims in Construction Defect Case
Rebecca Young (Partner-Birmingham, AL) and Alexander Makarenko (Associate-Birmingham, AL) obtained dismissal of all tort claims brought against Wilson Elser’s construction contractor client in a construction defect case in Alabama Circuit Court, Jefferson County. The plaintiffs’ claims included negligent hiring and supervision and wantonness, invoking punitive damages. Additionally, the plaintiffs sought damages beyond property loss, including consequential damages for loss of income, emotional distress and mental anguish, and the reimbursement of medical costs. Rebecca and Alex filed a motion to dismiss, arguing that the plaintiffs executed a limited warranty agreement waiving all claims against the client except for breach of contract and limiting relief solely to the repair or replacement of latent defects. After briefing and oral arguments, the court concurred that the warranty applied, dismissing all claims outside the limited warranty.
Rebecca A. Young and Alexander V. Makarenko
Stoberski and Lovett Obtain Dismissal of Third-Party Complaint
Mike Stoberski (Of Counsel-Las Vegas, NV) and James Lovett (Associate-Las Vegas, NV) obtained dismissal of a third-party complaint on behalf of an insurance brokerage and agent. The plaintiff sued for alleged injuries at a hair salon. The salon filed a third-party complaint, attempting to shift its alleged liability to its insurance brokerage for not procuring a liability policy that would cover professional services. In dismissing the complaint, the court found the third-party defendants had nothing to do with the alleged injuries of the plaintiff and the salon cannot share the liability for those injuries with the insurance brokerage and agent.
Michael E. Stoberski
Hanrahan and Choren Successfully Argue Statute of Limitations, D.C. Code § 6-205(a) and Rule 12(b)(6) Defenses to Secure Complaint Dismissal
Catherine Hanrahan (Partner-Washington, DC) and Pernell “Perry” Choren (Senior Associate-Washington, DC) obtained dismissal in the Superior Court of the District of Columbia on behalf of a local government agency that was sued pertaining to the operation and management of a large residential property. Catherine and Perry argued that the plaintiff’s Complaint (1) was duplicative of allegations she was arguing in related litigation; (2) must be dismissed for the plaintiff’s failure to comply with the strict notice requirements of D.C. Code § 6-205(a); and (3) to the extent she was alleging equitable and/or contractual claims within, must be barred by the doctrine of laches and the applicable statute of limitations. In a written decision, the court found Catherine and Perry’s arguments persuasive and ruled that the plaintiff’s Complaint is barred by the applicable statute of limitations, for the plaintiff’s failure to provide compliant § 6-205(a) before filing suit, and because her allegations are likely being addressed in the aforementioned related litigation. Accordingly, the court granted the Motion to Dismiss and dismissed the plaintiff’s claims with prejudice. This is the fifth dispositive motion victory that Catherine and Perry have achieved on behalf of this same client this calendar year.
Catherine A. Hanrahan and Pernell A. Choren
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Events
Kemper and Dutton Receive Affirmance on Application of Personal Injury versus MVRA Statute of Limitations
Louisville, Kentucky, Of Counsel Doug Kemper and Associate Cyrus Dutton obtained affirmance of a case in which the plaintiff and our client were involved in a motor vehicle accident. After the accident, our client exited his vehicle and pulled the plaintiff out of his driver-side door. Upon making contact with the ground, the plaintiff broke bones in his foot and ankle. The plaintiff filed suit almost two years after the accident, claiming that the statute of limitations of the Motor Vehicle Reparations Act (MVRA) should apply. The Meade County Circuit Court dismissed the plaintiff’s Complaint on Summary Judgment. The plaintiff appealed the trial court’s order, and on appeal, the Kentucky Court of Appeals found that the appellant’s injuries did not arise out of the use of a motor vehicle, but were caused by the third-party intentional tort of assault. As such, the Court of Appeals found that the two-year statute of limitations under the MVRA did not apply; rather, the appellant’s complaint was barred by the one-year statute of limitations for personal injury claims.
W. Douglas Kemper
Dwyer Secures Affirmance in Slip-and-Fall Case
John Dwyer (Of Counsel-Louisville, KY) obtained affirmance of a case in which the plaintiff alleged that she fell in an unsecured water meter vault, leading to a leg injury that resulted in disability. She claimed a total loss of earning capacity and substantial pain and suffering. John secured summary judgment in the trial court based on lack of notice of the alleged defect in the meter vault. The Kentucky Court of Appeals affirmed.
John H. Dwyer, Jr.
Comer and Brown Prove Alleged Injuries Not a Result of Client’s Negligence
Thomas Comer (Partner-New York, NY) and Christin Brown (Associate-White Plains, NY) obtained a defense verdict on behalf of a large international hospitality concessionaire, after a two-week trial in Ulster County Supreme Court. The plaintiff raised the demand from $2 million to $10 million just before trial commenced wile Tom and Christin maintained their top $250,000 offer throughout. The case involved a trip and fall in New York’s LaGuardia Airport. The plaintiff alleged she was struck by an ice box carried by our client’s employee and suffered physical and psychiatric injuries. She claimed she was unable to work and will likely need nursing care, and her now ex-husband claimed loss of services. Tom and Christin presented evidence that plaintiff’s symptoms were a result of a histrionic personality disorder, supported by an expert who testified that plaintiff’s orthopedic injuries were minimal, had mostly resolved and that some were preexisting and degenerative. The plaintiff’s treating neurologist confirmed that objective studies were normal. Further, over objections, the court permitted the introduction of the traumatic brain injury claim, which was diagnosed using DTI testing, which is not generally accepted by the scientific or medical community. Our defense neurologist, neuropsychologist and neuroradiologist testified that plaintiff did not sustain traumatic brain injury as a result of the alleged accident, while attributing plaintiff’s alleged neurological condition to preexisting histrionic personality disorder. A vocational rehabilitation specialist testified that the plaintiff is fully capable of working. Tom and Christin proved to the jury that our client and its employee were not negligent. The jury deliberated for eight minutes before returning a defense verdict.
Thomas W. Comer and Christin Brown
Lowry Parachutes in for Trial, Settles for Less than Specials
Michael Lowry (Partner-Las Vegas, NV) was brought in to try a slip-and-fall case against a janitorial company in the Eighth Judicial District Court, Las Vegas after the original defense firm was unable to fully staff the file. The case involved disputed liability based on the multiple caution cones the plaintiff walked past before falling. The plaintiff had never given a demand before Michael joined the case. After Michael’s motions in limine were filed, the plaintiff started negotiating and eventually settled for less than the specials he would present at trial.
Michael Lowry
Young Obtains Summary Judgment Based on the Federal Aviation Administration Authorization Act Preemption
Rebecca Young (Partner-Birmingham AL) defended a leading global pharmaceutical distributor in two cases arising out of a pile-up accident caused by a tractor trailer that collided with several vehicles stopped for traffic, which resulted in the death of an 11-year-old girl and catastrophic physical injuries to nearly a dozen others involved. The liability against the tractor trailer driver and his employer, neither of which had insurance, was undisputed. At the time of the accident, the driver was contracted to perform work for our distributor client through a broker. The plaintiffs sued our client and its broker for negligent, wanton selection and supervision, alleged failure to comply with Federal Motor Carrier Safety regulations, and failure to provide and verify insurance. The broker only had $1 million in coverage, which was contested, and filed for bankruptcy, leaving our client with the only pockets to pull from and a potential exposure of over $200 million based on Alabama’s joint and several liability. Rebecca argued that all claims against the client were preempted under the Federal Aviation Administration Authorization Act of 1994 (FAAAA). The U.S. District Court, Middle District of Alabama agreed and entered summary judgment in both cases covering all 11 plaintiffs’ claims and the wrongful death action.
Rebecca A. Young
Bjorlin and Garrity Obtain Summary Judgment Defeating Wrongful Death Claim
Roy Bjorlin (Of Counsel-Boston) and Michael Garrity (Associate-Boston) prevailed on a motion for summary judgment in Suffolk Superior Court, Boston, Massachusetts, for Wilson Elser's client, a residential property management company. The case involves a wrongful death action brought by the estate of the decedent, who was a tenant at a property owned and managed by the firm's client. The tenant died in the hospital ten days after suffering smoke inhalation and burn injuries following a stove fire in his apartment. The estate alleged that the client failed to provide adequate smoke detection, alarms and fire suppression equipment. Roy and Mike filed a motion for summary judgment, which the court granted based on insufficient evidence of negligence on the client's part and the inability of the plaintiff's estate to meet its burden of proof at trial.
Roy W. Bjorlin and Michael P. Garrity
Russell and Barksdale Compel Arbitration and Prevail in Complex Legal Dispute
Angela Russell (Partner-Baltimore, MD) and Nakea Barksdale (Associate-Baltimore, MD) achieved a significant defense victory for a general construction contractor in a complex legal dispute that began in the Circuit Court for Baltimore City. The plaintiff filed a complaint alleging breach of contract, unjust enrichment and negligence related to a home remodeling agreement, which included a roof installation, attic repair and other renovations. Angela and Nakea successfully filed a motion to dismiss the court case and a motion to compel arbitration based on an arbitration provision in the agreement. Once in arbitration, the defense team effectively demonstrated through expert and fact testimony that the contractor had fulfilled all contractual obligations and adhered to industry standards. The arbitrator ultimately ruled in favor of the contractor, dismissing all of the plaintiff’s claims.
Angela W. Russell and Nakea J. Barksdale
Melvani and Wilson Obtain Summary Judgment Defeating Cross-Claim For Moped Rental Company
Nicole Melvani (Of Counsel-Mclean, VA) and Hariton Wilson (Associate-McLean, VA) obtained summary judgment in the Superior Court of the District of Columbia in favor of Wilson Elser’s client, a moped rental service company. The client held a District of Columbia-issued public right-of-way occupancy permit allowing it to park mopeds, available for rent through a mobile app, in designated lanes across the District. The plaintiff alleges that while riding home from work on the rented moped, she encountered potholes on the road in the District, causing her to fall and sustain injuries. The plaintiff sued the District for negligence, alleging a failure to repair and maintain the roadway after receipt of notice regarding the potholes. In addition, the plaintiff alleged negligence and product liability claims against our client. Nicole and Hariton successfully moved to compel the plaintiff’s claims against the client to arbitration based on the rental agreement’s arbitration provisions. Still, the plaintiff ultimately elected not to pursue the arbitration.
The plaintiff’s negligence claim against the District proceeded, with the District filing a cross-claim against the moped rental company seeking indemnification pursuant to provisions in the public right-of-way occupancy permit. In their motion for summary judgment, Nicole and Hariton argued that the indemnification provision does not require the company to indemnify the District for claims arising out of the District’s negligence or, in the alternative, that the provision is ambiguous on that issue and as such, is unenforceable. The court agreed with Wilson Elser’s analysis and interpretation of the permit’s language, finding that whether there was an agreement to indemnify turns on the definition of the phrase “public right-of-way,” as used in the agreement. The court concurred that this key phrase is undefined and capable of multiple meanings. The court further determined that the District waived any right to indemnity when it refused to cede control of the defense when tendering the matter, rejecting the District’s assertion that it could waive the defense portion of the clause without waiving the right to indemnity. The court found that the provision is not solely for the District’s benefit and cannot be waived while retaining the indemnity requirement. Accordingly, the court granted Wilson Elser’s motion for summary judgment on behalf of the client.
Nicole T. Melvani and Hariton J. Wilson
Russell and Choren Secure Dismissal Under D.C. Rules 8(a) and 12(b)(6) for Multi-National Food & Beverage Client
Angela Russell (Partner-Baltimore) and Pernell Choren (Associate-Washington, DC) obtained dismissal in the Superior Court of the District of Columbia for a multinational food and beverage company accused of negligence. Angela and Perry filed a motion to dismiss, arguing dismissal was warranted because the claim contained insufficient pleadings and that pro se litigants like the plaintiff are not entitled to special treatment in the District of Columbia. Angela and Perry demonstrated that the plaintiff failed to effectuate the service of process on either our client or its insurer. In a four-page written decision, the Court found Angela and Perry’s arguments persuasive and ruled that the plaintiff failed to identify any element of any legally viable claim. The Court granted Wilson Elser’s motion and dismissed the plaintiff’s complaint and the amended complaint under Rule 12(b)(6).
Angela W. Russell and Pernell A. Choren
Silas, Simmons and Hamilton Secure Summary Judgment for Restaurant Franchisor
Kimberly Silas (Of Counsel-New Orleans, LA), Matthew Simmons and Matthew Hamilton (Associates-New Orleans, LA) obtained a summary judgment on behalf of a restaurant franchisor in the 15th Judicial District Court Acadia Parish, Louisiana. The plaintiff sued the restaurant's franchisor for personal injuries after allegedly slipping and falling inside the franchised premises. The franchisor had no operational control over the premises but plaintiff's counsel refused to dismiss the franchisor from the lawsuit. After Kimberly and her team filed their motion for summary judgment, the hearing was set for seven months later. A week before the hearing, plaintiff's counsel moved for a continuance stating the need to conduct additional discovery, and the court granted her motion. After taking the restaurant manager's deposition, the plaintiff’s counsel still was not able to uncover any evidence to create a genuine issue of material fact. The court granted our motion and dismissed the franchisor with prejudice.
Kimberly R. Silas, Matthew E. Simmons and Matthew J. Hamilton
Dell and Graham Obtain Summary Judgment in Double-Venued Case
Gregory Dell (Partner-New York, NY) and Omar Graham (Associate-New York, NY) defended global communications companies in a trip-and-fall case where the plaintiff was injured on a defective sidewalk. The plaintiff commenced four actions against thirteen defendants; three of the four cases were consolidated in Nassau County and the fourth tried in Queens County, resulting in Greg and Omar fighting the case in two venues. Discovery revealed the importance of identifying which specific aspect of the defect caused the plaintiff’s fall as the answer would affect which defendants were potentially liable. Despite receiving several opportunities at her deposition, the plaintiff admitted she was not sure whether she fell due to (1) the uneven sidewalk flags or cracks in the sidewalk, (2) missing portions of the sidewalk likely resulting from work performed thereon, or (3) a metal access box situated inside the defect. Notwithstanding that Greg and Omar were able to prove that the subject defect formed prior to the only work our clients performed in the decade before the accident, the Nassau County Court granted our client’s motion for summary judgment based on the plaintiff’s inability to identify what caused her fall, which is fatal to a plaintiff’s claim in New York. The Nassau decision legally precluded the Queens Court from a finding to the contrary, and the Queens Court granted our client’s summary judgment motion in that venue as well. The case in Nassau has been appealed.
Gregory J. Dell
Dodrill and Carlston Kick Out Negligent Entrustment Claim Against Car-Sharing Platform
Colt Dodrill (Of Counsel-Phoenix, AZ) and Jon Carlston (Of Counsel-Las Vegas, NV) prevailed on summary judgment for a client car-sharing platform in Nevada’s Eighth Judicial District Court. Through our client, a non-party vehicle owner agreed to share his vehicle with a co-defendant who let the defendant driver operate the vehicle, which later stuck the plaintiff’s vehicle. Colt and Jon argued that our client could not entrust a vehicle it, as a car-sharing program, did not control. Colt and Jon also argued that the law of negligent entrustment was not strict liability and did not extend to successive entrustments to unauthorized drivers. When the plaintiff argued Nevada’s car rental statutes required our client to insure the vehicle as to all operators, Jon pointed the court to Nevada’s new car-sharing statutes that except car-sharing programs from that rule. The court agreed and entered summary judgment in favor of our client, sparing them from burdensome discovery and substantial exposure for the plaintiff’s personal injuries.
Colt B. Dodrill and Jon J. Carlston
Lowry and Pattillo Obtain Summary Judgment for Grocer Defeating Slip/Trip and Fall Claim
Michael Lowry (Partner-Las Vegas) and Jonathan Pattillo (Associate-Las Vegas) obtained summary judgment in Nevada’s Eighth Judicial District Court on behalf of a regional grocer. The plaintiff alleged she was injured after slipping and falling in one of the client’s Las Vegas stores. At the close of discovery, Michael and Jonathan moved for summary judgment because no evidence was shown indicating how or why the alleged hazard was created. The court concurred, determining the plaintiff failed to show that our client created the hazard that caused her to slip, was unable to produce admissible evidence that our client received actual notice of the hazard before the slip occurred and failed to produce sufficient evidence to create a genuine dispute as to any material facts in relation to breach of duty and causation. The court then granted Wilson Elser’s summary judgment motion in favor of the grocer client.
Michael Lowry and Jonathan C. Pattillo
Greenfield and Stein Score Landmark Summary Judgment in Hockey Puck Injury Case for Premiere Sports Venue
Benjamin Greenfield (Associate-White Plains) and Aviva Stein (Partner-New York) obtained summary judgment in New York County Supreme Court in a premises liability action involving a hockey puck strike injury at a New York professional arena, our client. The plaintiff alleged he was struck in the hand by a deflected puck while seated in section 115, row 3, located in the first row on the side of the arena, between the goal and the blue line and even with the faceoff circle. The shielding in place for this area comprised a combination of boards and plexiglass extending more than 9 feet above the ice/playing surface. The arena issued verbal and written warnings on the scoreboard concerning the risk of pucks entering unscreened seating areas and included warning language on the back all tickets. Following the close of discovery, Ben and Aviva moved for summary judgment pursuant to the prevailing “limited duty rule” in New York highlighting that the arena discharged its limited duty by erecting boards and glass around the arena’s perimeter that complied with and exceeded NHL regulations and arguing that the arena was not required to completely eliminate the risk of pucks entering the area along the side of the ice where plaintiff was seated, as it was not the area of greatest danger.
In opposition, plaintiff argued that he had the “justified expectation” that no pucks could come into his area since he was seated in the first row behind and below the level of the plexiglass screening in front of him. Plaintiff further contended in circular fashion that because a puck came into an area, something must have been wrong with the shielding and the arena should have enacted further measures. On reply, Ben and Aviva highlighted that plaintiff failed to rebut that the Arena discharged its limited duty as a matter of law, stressed that plaintiff’s circular logic was not sufficient to create a factual issue with regard to the sufficiency of the spectator shielding, and distinguished the cases relied upon by the plaintiff, which either involved plaintiffs struck in the area behind the goal in the area of greatest danger or where an actual defect was proven with respect to the shielding measures provided.
Judge Bluth granted the Defendants’ motion agreeing that MSG is not required to eliminate the risk that a puck may enter the seating area on the side of the ice, which is not the area of greatest danger, as such a standard would be tantamount to requiring netting throughout the arena or boards that extend up to the ceiling. Remarkably, this is the first decision addressing and enforcing the application of the limited duty rule (applicable to proprietors of sporting venues) at the arena since the enhanced shielding measures (netting at the ends of the rink) were implemented in the Fall of 2002 in the wake of Brittany Cecil’s tragic death. This decision comes at a critical time given the expansion of netting in some baseball stadiums, the sport from which the limited duty rule derived, which was developed by some practitioners as a platform to try and undermine the limited duty rule and argue for a higher standard in the sport of Hockey. Barring any adverse development at the appellate level, which is not expected, this decision constitutes critical case law that supports the continued application of the limited duty rule to the sport of Hockey now and going forward.
Aviva Stein and Benjamin D. Greenfield
Lum, Stein and Budofsky Obtain Jury Verdict in Favor of NY’s Largest Health Care Provider
New York partners Larry Lum and Aviva Stein and White Plains associate Rachel Budofsky successfully defended New York’s largest health care provider serving New York City, Long Island and Westchester County in a premises liability action in Richmond County Supreme Court. The jury returned a verdict in favor of the Staten Island University Hospital following a one-week trial. The plaintiff claimed she seriously injured herself when she slipped and fell on fluid that she believed was leaking from an IV bag because she saw the empty bag and the tubing was laying in the puddle. Larry, Aviva and Rachel established that the plaintiff could not prove her assertion that the fluid was from the bag as opposed to another source and highlighted that when reported to the security officer, the plaintiff never mentioned the IV bag or her assumption that it came from the IV bag and only reported that she fell on a watery substance on the floor. The jury concluded that the plaintiff failed to meet her burden of proof with credible evidence to establish that the hospital created or had notice of the fluid on the floor before her fall and found no negligence on the part of the hospital. The settlement demand was $1.2 million before the defense verdict.
Aviva Stein, Larry Lum and Rachel Budofsky
Partners Lum and Stein Prevail in Serious Slip-and-Fall Case
Larry Lum (Partner-New York City) and Aviva Stein (Partner-White Plains) secured a unanimous defense verdict on behalf of New York’s largest health care provider in a slip-and-fall case involving a serious femoral neck fracture with surgery. Benjamin Greenfield (Associate-White Plains) assisted with trial preparation and submissions in Suffolk County, Supreme Court. The case could not have settled for less than $750,000, but a unanimous verdict was rendered by a Suffolk County jury in favor of our client on the issue of liability after 12 minutes of deliberations.
Larry Lum, Aviva Stein and Benjamin D. Greenfield
Swanson & Stein Defeat Slippery Argument in Hospital Slip & Fall Case
Suzanne Swanson (Associate-New York) and Aviva Stein (Partner-White Plains | New York) obtained summary judgment in the Supreme Court, Queens County on behalf of our client, one of the top four hospitals in the New York metropolitan area and the state. Plaintiff alleged he slipped on ice on the roof of the hospital parking structure and sustained multiple rib fractures and T9/T10 fractures requiring T8-T11 instrumentation and fusion surgery, and was seeking $500,000 to resolve the matter. Suzanne and Aviva argued that the hospital could not be liable for plaintiff’s alleged slip on ice due to the “storm-in-progress” doctrine, citing to well-settled case law that a landowner may not be held liable for accidents occurring as a result of a storm when there is a storm in progress and for a reasonable time after it has ceased. They presented certified weather records and an affidavit from our weather expert confirming it had been snowing continuously all day and had ended – at most – 90 minutes prior to plaintiff’s alleged fall, which was not enough time for the hospital to clear its extensive hospital grounds. The Court found that Suzanne and Aviva had established a prima facie showing of entitlement to summary judgment. Further, the Court found that plaintiff’s argument that the precipitation “accumulated on top of areas of old melt that remained on exposed and untreated surfaces” was insufficient to raise a triable issue of fact as to whether the hospital had actual or constructive notice of the condition because “evidence that there was ice in the general vicinity of the accident prior to the storm” is insufficient to raise a triable issue of fact as to whether the defendant had actual or constructive notice of the condition of the specific area within the parking lot where plaintiff allegedly fell.
Aviva Stein and Suzanne S. Swanson
Struck and Rivera Prevail in Defense of City in Slip-and-Fall Case
Bert Struck (Of Counsel-Orange County, CA) and Danielle Rivera (Associate-Los Angeles, CA) represented a city government where it was alleged the plaintiff slipped and fell on a greasy pizza box left on public property. After the second demurrer on the grounds that the plaintiff had not sufficiently alleged a dangerous condition to hold a governmental entity liable, the judge in the Superior Court of the County of Riverside ordered the demurrer sustained without leave to amend. The plaintiff has filed the dismissal with prejudice as to our client.
Bert Struck and Danielle C. Rivera
Washburn and Resnak Prevail in Case Already in Default
Lawrence Washburn (Partner-Atlanta, GA) and Alex Resnak (Associate-Atlanta, GA) obtained a complete win on behalf of a local housing authority client within weeks of receiving the case, which the client had unknowingly allowed to go into default. Days after taking the case, Lee and Alex obtained an order opening the default and immediately thereafter filed a motion for summary judgment. The Superior Court of Fulton County, Georgia, entered summary judgment in the client's favor on all the plaintiff's claims only weeks after Lee and Alex appeared.
Lawrence Lee Washburn, IV and Alex F. Resnak
Casiano Obtains Summary Judgment for Unit Owner Defeating Negligence Claims
Sergio Casiano (Partner-Miami) obtained summary judgment in the Florida Eleventh Judicial Circuit on behalf of Wilson Elser’s Client, a global insurance company. In this matter, the plaintiff is a tenant in a condominium unit alleging injuries caused by her ceiling caving in and falling on her. The plaintiff sued our client, who owns the unit directly above hers, claiming it is the source of the water leak. Sergio presented evidence that the leak triggering the collapse resulted from a broken fitting on a copper pipe in the building’s attic area, which fed water to multiple units. He argued that the broken fitting constitutes a “common element” of the condominium Association and is not a part, fixture or element of our client’s unit. The court concurred that under The Declaration of Condominium and Florida Statute §718.108(1)(d), the duty to repair a common element was solely that of the condominium Association, and it is responsible for the leak and resulting damages. The court further found that the plaintiff failed to establish either the duty or the proximate cause elements of a simple negligence claim, granting Wilson Elser’s motion for summary judgment and thereby relieving the client of any liability in this case.
Neff Teams with NY Talent to Secure Dismissal on Eve of Jury Selection
Robert C. Neff Jr. (Of Counsel-Madison, NJ) combined forces with the firm’s White Plains, New York, office to win a dismissal for a large construction material supply company in an automobile accident trial with a $750,000 settlement demand after in limine motions were heard and jury selection was about to begin. The complaint alleged that the tractor-trailer operated by the client’s driver struck the plaintiff’s vehicle as it was attempting to merge into heavy traffic. The driver testified that the plaintiff attempted to cut him off. Plaintiff alleged disabling injuries with two surgeries and implantation of an electronic stimulator in her back. The Essex County trial judge granted Wilson Elser’s in limine motions to bifurcate the matter and to proceed first with a liability-only trial. The evening before jury selection, plaintiff’s counsel advised that his client was unable to come to New Jersey for trial because of an unspecified medical procedure and she was unable to afford plane fare. A motion to dismiss was promptly prepared, and with the assistance of New Jersey Office Administrator Suzanne Tornillo and Legal Assistant Paula Johnson, and e-filed at 6:55 a.m., before jury selection began. That morning, plaintiff’s counsel made an emergent request to adjourn the trial, which was denied and the case was sent back to the trial judge for a decision on Robert’s motion to dismiss. Finding that the defense was prepared and ready to proceed, and plaintiff had failed to provide any advance notice of her issues, even to her own attorney, the trial judge granted the motion to dismiss, and gave leave to cross-move for an award of fees and costs should plaintiff move to reinstate the matter.
White Plains Senior Counsel Harry Brett served as TRAC counsel, and partners Jacqueline Hattar and John Flannery provided invaluable advice.
Robert C. Neff Jr.
Dodrill and Carlston Obtain Dismissal Under New Peer-to-Peer Car-Sharing Statutes
Colt B. Dodrill (Of Counsel-Phoenix, AZ) and Jon Carlston (Of Counsel-Las Vegas, NV) prevailed on a motion to dismiss in Nevada state court in a negligent entrustment action against Wilson Elser’s clients, a peer-to-peer car-sharing program and the shared vehicle’s owners. The plaintiff’s luxury tour bus suffered extensive property damage after a hit-and-run accident with the shared vehicle. Although it was unclear whether an authorized driver or car thief was behind the wheel, Colt and Jon argued that common law does not recognize successive entrustments. In an issue of first impression, Colt successfully navigated Nevada’s recently enacted car-sharing statutes to convince the court that the clients need not investigate whether a license displayed by the authorized driver was valid. Colt also convinced the court that the client’s insurance required by the new statutes was not the plaintiff’s ticket to impose vicarious liability. Colt also argued that joint and several liability under the old car rental statutes took a backseat to the new peer-to-peer car-sharing statutes. In addition, Colt argued that amending the complaint and allowing discovery would be futile. The court agreed and dismissed all claims against the client. This decision saved the client from significant exposure, burdensome discovery, and substantial costs and legal fees.
Colt B. Dodrill and Jon J. Carlston
Suarez and Llopis Obtain Dismissal of Complaint with Prejudice in Premises Liability Case
Tanya Suarez (Partner-Miami, FL) and Nicole Llopis (Associate- Miami, FL) obtained a dismissal of all claims with prejudice in the Circuit Court in and for Palm Beach County for Wilson Elser’s client, a condominium and a property management company. The plaintiff alleged negligence against the firm’s clients and claimed more than $385,957 in monetary damages. Tanya and Nicole argued that the complaint failed to state a cause of action upon which relief could be granted and the court agreed and dismissed the entire complaint with prejudice.
Tanya I. Suarez
Burd and Jones Granted Motion for Summary Judgment – Case Dismissed with Prejudice
James M. Burd (Partner-Louisville, KY) and Samuel Jones (Associate-Louisville, KY) secured summary judgment on behalf of a real estate company in a case in which the plaintiff alleged that after moving into an apartment complex that was still under construction, she became ill with sepsis due to water contamination stemming from poor workmanship and maintenance on the property. The plaintiff moved for summary judgment on her claims of negligence, negligent maintenance, false advertising of rent, fees, and utilities; and unjust enrichment. The plaintiff also filed a motion to disqualify defense counsel for a concurrent conflict of interest. Samuel then moved for summary judgment based on the plaintiff’s failure to present any affirmative evidence to establish the requisite elements of negligence. In an Order addressing the competing motions for summary judgment and the motion to disqualify, the court found that the plaintiff failed to adequately demonstrate a causal connection between her illness and her tenancy at the complex in question. Further, the court found that the plaintiff’s motion to disqualify failed to state an actual conflict and fundamentally misunderstood the nature of the attorney-client relationship. As such, the court denied the plaintiff’s motion for summary and motion to disqualify, while simultaneously granting Jim and Samuel’s motion for summary judgment, and dismissing the case with prejudice.
James M. Burd and Samuel E.T. Jones
Granata and Zhou Deliver Early Dismissal in Premises Liability Case
Valeria Granata (Partner-Los Angeles, CA) and Bosheng "Niko" Zhou (Associate-Los Angeles. CA) secured a dismissal in favor of a client nail salon in a premises liability case. The plaintiff, who allegedly fell in a parking lot outside the nail salon, claimed personal injuries. The nail salon did not bear liability for the alleged incident as it did not control the parking lot pursuant to an agreement with the landlord. Valeria and Niko proactively obtained the subject contract and persuaded the plaintiff to dismiss the client from the lawsuit before a response to the complaint was due.
Moore and Jo Obtain Dismissal for Tree Removal Company in Catastrophic Injury Claim
Peter Moore (Partner-McLean, VA) and Sung Che Jo (Associate-McLean, VA) successfully argued and obtained a ruling granting their plea in bar and dismissing all claims against client tree removal company in the Circuit Court for Nottoway County, Virginia. The accident occurred while our client performed tree removal services along the highway after an ice storm in Virginia. The plaintiff, who was monitoring the work, was struck by a tree cut by one of our client’s employees and sustained significant head injuries and broken bones, and alleged permanent disability. Peter and Sung Che demonstrated that the plaintiff and our client were both subcontractors employed by the Commonwealth of Virginia through various primaries, and therefore, they were statutory co-employees subject to workers’ compensation exclusivity pursuant to the Virginia Workers’ Compensation Act. The plaintiff argued that the parties were not statutory co-employees because Virginia is not in the business of tree removal, but Peter and Sung Che successfully argued that the test to determine statutory employer is broader in the context of employment by a government entity. The court agreed and granted the plea in bar. This is a significant win for our client because the case involved several contractors and subcontractors involved in the project and threatened to subject our client to extensive discovery and expenses, as well as exposure to millions of dollars in claimed damages.
Peter M. Moore and Sung Che Jo
Hanrahan and Choren Successfully Argue D.C. Code § 6-205(a) Defense and Secure Claim Dismissal
Catherine Hanrahan (Partner-Washington, DC) and Pernell “Perry” Choren (Associate-Washington, DC) obtained dismissal in the Superior Court of the District of Columbia on behalf of a local government agency sued for allegations of negligence pertaining to the operation and management of a large residential property. The court’s primary focus was on the sufficiency of the plaintiff’s mandatory written notice of claim pursuant to D.C. Code § 6-205(a). In their Motion to Dismiss, Catherine and Perry argued that neither of the plaintiff’s alleged § 6-205 notices were submitted to the correct individual at the agency as set forth in the statute. Additionally, they argued that the plaintiff was too vague in describing the time that she was injured and the location of the alleged incident. The court initially granted the Motion to Dismiss, but provided the plaintiff with the opportunity to file an Amended Complaint and further support how she was compliant with § 6-205. Catherine and Perry renewed their Motion to Dismiss, fully briefed by both parties, and the court held a remote motion hearing. In an oral ruling from the bench, the court found Catherine and Perry’s arguments persuasive and ruled that the plaintiff failed to produce evidence demonstrating that she timely provided the mandatory written notice of claim to the correct individual at the agency. Additionally, the court correctly ruled that actual notice by the agency is not a consideration in a § 6-205 analysis. Accordingly, the court granted the Motion to Dismiss.
Catherine A. Hanrahan and Pernell A. Choren
Greene’s Successful Motion for Judgment on the Pleadings Upheld Against Motion for Reconsideration
Nigel Greene (Of Counsel-Philadelphia) prevailed against a motion for reconsideration in the Philadelphia County Court of Common Pleas for Wilson Elser’s client, a Philadelphia bus tour company. In the underlying case, the plaintiff alleged that our client allowed him to exit a touring vehicle at a location where a depressed grate in the road created a tripping hazard. Nigel successfully argued that under the law, the touring company was not responsible for the condition of the roadway, nor was there a breach of legal duty owed to the plaintiff regarding the condition of the roadway at the location where the plaintiff exited the vehicle. The court concurred, granting Nigel’s motion for judgment on the pleadings, and denying the plaintiff’s motion for reconsideration.
Nigel A. Greene
Lowry and Pattillo’s Discovery Strategy Leads to Voluntary Dismissal
Michael Lowry (Partner-Las Vegas, NV) and Jonathan Pattillo (Associate-Las Vegas, NV) proposed and executed a discovery strategy that eventually led to a voluntary dismissal. The firm's client was named in a slip-and-fall case where the claimant alleged a complex fracture resulted in medical bills exceeding $350,000. The client was suspicious that the fall did not happen within an area the client controlled. Over the course of months, Michael and Jonathan were able to gather facts from the plaintiff and other defendants that eventually confirmed the client's suspicions. The plaintiff later agreed to voluntarily dismiss as to the firm's client without indemnity.
Michael Lowry and Jonathan C. Pattillo
Donovan and Vahey Summary Judgment Affirmed by Appellate Division on Issue of First Impression in New Jersey
Philadelphia, Pennsylvania, partners John Donovan and Caroline Vahey defended our stone quarry operator client in a case in which the plaintiff entered the client’s property riding a dirt bike when he struck a raised cable and suffered severe internal injuries requiring helicopter transport and emergency surgery. The plaintiff sued the quarry alleging that decades of use by dirt bike and ATV riders resulted in implied consent for entry and, with it, a common law duty to prevent concealed dangers such as the raised cable. We filed a Motion for Summary Judgment invoking a never-before-cited New Jersey statute (N.J.S.A. 39:3C-18) that immunizes property owners from claims by dirt bike, ATV and snowmobile riders who are injured on a landowner’s property without the landowner’s express consent to enter. The only exception preventing immunity is that the landowner must not have created the hazard willfully or maliciously. The Law Division agreed granting summary judgment and holding that the ATV Act immunized the quarry. The plaintiff appealed, and the New Jersey Appellate Division affirmed the decision in an opinion approved for publication as an issue of first impression. The court held that the ATV Act applied and that the cable was in place for a “legitimate business function.” The Court held that for the willful and malicious exception to apply, the quarry must have knowingly created a hazard to a dirt bike rider and “not simply the knowing creation of a hazard, in general. The decision sets binding precedent for future actions that will provide protection to the quarries operated by our client and any other property owners on whose land trespassers operate ATVs, dirt bikes and snowmobiles.
John T. Donovan and Caroline S. Vahey
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Events
Tranen, Wilke and Boston Obtain Unanimous Defense Verdict for Security Company
The St. Louis, Missouri, team of Daniel Tranen (Partner), Julia Wilke (Of Counsel) and Jennifer Boston (Associate) represented a security company client accused to failing to search a psych patient who brought a gun into the hospital emergency department and pointed it at two nurses while they tried to get him to change into hospital scrubs. The nurse plaintiffs argued that the mere fact that he had the gun demonstrated a lapse in security's need to control weapons coming into the emergency department. We convinced the jury that for patients in the treatment area of the emergency department – based on internal hospital policies and the post orders for our client – all searches had to be initiated by hospital staff, and there was no evidence that hospital staff initiated a search. Moreover, the procedures for searches had the search take place after the patient was in hospital scrubs and therefore this particular patient was not yet supposed to be searched under this key policy. Meanwhile, neither nurse plaintiff had requested a search before the gun was discovered, therefore, it was not our client’s fault that the patient had not yet been searched when he revealed the gun to the plaintiff nurses. The plaintiffs requested a verdict of $1 million with both nurses claiming significant PTSD symptoms and damages as a result of the incident. The jury returned a unanimous defense verdict after about an hour (you only need 9 of 12 jurors to reach a verdict in Missouri).
Daniel E. Tranen and Jennifer Boston
DeBraccio Achieves Reversal of Default Judgment in First Department
Steven V. DeBraccio (Associate-White Plains, NY) defended the owner of an apartment complex in a case that involved an alleged slip-and-fall accident on the sidewalk of our client’s complex. Our client, due to COVID-19 staffing issues, did not receive notice of the lawsuit and a default judgment was entered against him. The First Department, citing Sara’s Studios, LLC v. Sparkle World LLC (217 AD3d 465 [1st Dept 2023]), relied upon by Steven in his appellant’s brief, concluded that our client did not receive actual notice of the lawsuit. Moreover, in a rare turn of events, the First Department concluded in the interest of justice that it would consider a subsequent affidavit from our client’s property manager, and that the affidavit, taken together with a number of other unrelated lawsuits filed by the plaintiff, was sufficient to raise a meritorious defense, in particular, as to whether our client was the proximate cause of the plaintiff’s alleged fall and whether our client negligently maintained the subject sidewalk.
Steven V. DeBraccio
Golub and Tate Obtain Pivotal Motion for Summary Judgment Victory for Major Client
San Diego, California, partners Beth Golub and Justina Tate prevailed on a motion for summary judgment on behalf of a major client of the firm based on evidence of no causation for the alleged wrongful death of a 19-year-old female college student. While the death was undeniably tragic, Beth and Justina established as a matter of law that the plaintiff could not prevail on any of her seven causes of action and the firm defendants were not the legal or proximate cause of the death. The decedent who was intoxicated was struck by two vehicles while walking across freeway lanes in San Diego at approximately 1:30 a.m. The death took place 30 minutes after and more than 4.5 miles from the location where the decedent had any interaction with the firm’s client. The court therefore found there was no proximate cause for her death, and the client was dismissed from the case two months before trial and facing a seven-figure demand. This case was hard-fought and contentious from the beginning and involved a motion to change venue from San Francisco to San Diego, which required a writ to the Court of Appeal. There were prior motions that successfully eliminated two misrepresentation causes of action and punitive damages. The press reported heavily on this matter throughout.
Beth Golub and Justina L. Tate
Greenfield and Lum Score Landmark Summary Judgment in Assumption of Risk Case for Premiere Sports Venue
Benjamin Greenfield (Partner-Philadelphia, PA) and Larry Lum (Partner-New York, NY) convinced the Supreme Court of the State of New York, County of Queens, to grant their summary judgment motion on behalf of a premiere New York sports venue. The plaintiff alleged that a T-shirt was shot out of an air cannon at a “direct angle” to his location, which increased the ordinary risks inherent in the activity, and reported the incident to multiple news outlets. The court agreed with Ben and Larry that the plaintiff’s experience and keen observations of the air cannon operator at this and prior events reflect the open and obvious nature of the risk presented. The court also agreed that the plaintiff’s points raised regarding the “direct trajectory” of the shot making it more dangerous than other projections from the air cannon were speculative and insufficient to create a factual issue regarding the supposed “danger.” Further, the court noted that even accepting these allegations of a more direct angle as true, the plaintiff cannot prove that a more arced shot would have led to a different result. The court also noted that the plaintiff deliberately moved closer to the air cannon and placed himself in what he hoped to be the T-shirt’s direct path, which made his role as a participant even clearer and thus reinforces the application of the primary assumption of risk doctrine. Beyond being notable, this decision amounts more broadly to a favorable decision in the Assumption of Risk realm concerning what was an issue of first impression in New York regarding a patron being struck by a T-shirt projected into the stands.
Benjamin D. Greenfield and Larry Lum
Kent and Wood Obtain Unanimous Defense Verdict in Auto Collision Case
Jarad Kent (Partner-Dallas/Tyler, TX) and Morgan Wood (Associate-Tyler, TX) defended a client involved in a motor vehicle accident. Both drivers were making left-hand turns out of parking lots across the road from each other when they collided. Each side faulted the other for the accident. Our client, through separate counsel, asserted counterclaims against the plaintiff, who was logged into the driver version of DoorDash at the time of the accident. The counterclaims resolved a week prior to trial, leaving only the plaintiff's affirmative claims against our client. After a one-day trial, the jury returned a unanimous defense verdict finding the plaintiff to be 70 percent at fault for the accident and our client only 30 percent at fault.
Jarad L. Kent and Morgan Wood
Belanger and Russell Receive Defense Verdict, Court Discourages Further Appeals
Emily Belanger (Associate-Baltimore, MD) and Angela Russell (Partner-Baltimore, MD) received a defense verdict following a recent bench trial in the Circuit Court for Montgomery County. This case has been pending for four years and was appealed to the Appellate Court after the lower court granted Emily and Angela’s motion for summary judgment. The Appellate Court reversed in part and remanded the case for trial. The plaintiff claimed breach of contract and sought the market value of his personal property ($100,000+) and attorney’s fees following the sale of said property after plaintiff’s default on rental payments to our client storage facility. The court focused its analysis on waiver and estoppel based on COVID-19 publications that our client issued from their corporate offices noting leniency on payments and delays in auctions because of the pandemic. The court concluded that the plaintiff did not rely on said COVID-19 publications to establish estoppel, and as to waiver, that the plaintiff failed to carry his burden of proof. The court went on to caution the plaintiff that if he intended to appeal again, any damages would be limited to $5,000, pursuant to the contract, and attorney’s fees would not be recoverable.
Emily Belanger and Angela W. Russell
Greenfield, Cash and Lum Defeat Certification of a Class Action for Casino Client for Second Time in Three Months
Benjamin Greenfield (Partner-Philadelphia, PA) and New York City partners Joshua Cash and Larry Lum succeeded in convincing the Kings County Supreme Court, Civil Term, to grant their pre-answer motion on behalf of the largest casino operator in New York City, to dismiss plaintiff’s claims in their entirety, including the dismissal of plaintiff’s individual and putative class action claims. Essentially, plaintiff, by and through her counsel, set forth conspiratorial claims that the casino is engaged in a deceptive practice to deprive patrons of their loose change. The plaintiff alleges that after receiving her cash-out voucher from the machine at the casino, she was only paid out the amount in whole dollars, and was not paid the full balance due, including the cents. The plaintiff sought to represent a class of all casino customers who were similarly deprived of their loose change. Notably, plaintiff’s counsel appeared to be taking the lead from similar attempted class actions claims sought to be certified against at least two other casinos in other jurisdictions around the country. Ben, Joshua and Larry obtained dismissal of the multiple causes of action set forth in plaintiff’s complaint, including violation of New York Business Law §§ 349 and 350, Breach of Contract, Conversion and Unjust Enrichment, and relied successfully on affidavits from casino personnel and photographic evidence that demonstrated conclusively there was nothing misleading about the defendant’s practices and that any forfeiture of such change was plaintiff’s own deliberate choice. The court also was convinced to dismiss plaintiff’s proposed class action claims insofar as the class definition was overbroad, sought to certify what was effectively a sham proceeding (the court specifically referenced within its 15-page decision the adage that “the law does not concern itself with trifles”), and would not be composed of persons with identical interests.
Benjamin D. Greenfield, Joshua Cash and Larry Lum
Santana and Calme-Cappellini Win No Cause Judgment For Domestic Airline Client
Sierra Santana (Associate-Madison, NJ) and Megan Calme-Cappellini (Of Counsel-Madison, NJ) obtained a dismissal with prejudice in the Mercer County Superior Court, Trenton, New Jersey, for Wilson Elser’s client, a domestic airline. The plaintiff caused a disturbance on a flight, and he was removed from the client’s plane before takeoff. He sued, alleging negligent and intentional infliction of emotional distress, and sought punitive damages on the claim. Additional claims included alleged breach of contract and unjust enrichment, with a total demand of $20,000. Sierra and Megan’s ensuing motion for summary judgment was denied as premature. The parties proceeded through the discovery process, and upon appearing for a bench trial, Sierra and Megan had no choice but to proceed with no witnesses. Accordingly, the cross-examination of the plaintiff was crucial to the defense. The court held that the plaintiff failed to meet the burden of proof regarding the alleged claims and issued a dismissal with prejudice for failure to establish a cause of action.
Megan R. Calme-Cappellini
Lum and Seltzer Secure Unanimous Defense Verdict in Casino Slip-and-Fall Case
Larry Lum (Partner-New York, NY) and Stacey Seltzer (Of Counsel-New York, NY) obtained a unanimous defense verdict after a three-day liability trial in Kings County Supreme Court involving a slip and fall in an outdoor parking lot at a New York City client casino. The incident was captured on surveillance that was submitted to the jury, along with photographs depicting the allegedly icy location with plaintiff’s counsel arguing that the lot was undisturbed/ untreated and dangerous. On cross-examination of plaintiff’s meteorological expert, Larry and Stacey showed that the temperature never fell below freezing in the hours before the accident and that for ice to have formed in the area it would have had to have been “new ice” that melted and refroze, which was essentially impossible due to the temperatures. While there was no record of the snow removal company having been on the premises within 17 hours of the accident, we highlighted to the jury the efforts that were undertaken when the snow removal company was present, including establishing that sufficient remedial measures were employed. The casino’s director of operations testified as to the large amount of foot traffic the casino receives daily, the lack of any complaints in the area and the constant inspection protocols taken by security. Lastly, we stressed that plaintiff cut across a snowy embankment just prior to stepping down onto the parking lot surface where he fell, showing that if anything caused him to fall, it was his own actions. The plaintiff raised the demand from $250,000 to $500,000 just before trial commenced and we never offered more than $2,500 throughout the duration of the litigation.
Larry Lum and Stacey L. Seltzer
Pompeo and Werner Prevail for Premises Owner under Privette Doctrine
Celeena Pompeo (Partner-Orange County, CA) and James Werner (Associate-Orange County, CA) obtained summary judgment in favor of a premises owner client against a plaintiff who tripped and fell on a floor mat while working for a cleaning company at our client’s warehouse. The plaintiff sustained a spinal fracture and claimed she could not return to work due to her injuries. Her past lost earnings, loss of future earnings and earning capacity was substantial due to the many years she had missed work. The plaintiff claimed the floor mat was a dangerous condition on the property and that the owner should have provided a warning. Celeena and James argued that the Privette doctrine bars the plaintiff, an employee for an independent contractor on the premises, from recovering against the hirer of the independent contractor. Through the effective and critical deposition questions posed to the plaintiff, Celeena and James were able to confirm that the client did not affirmatively contribute to the plaintiff’s injury, and thus there was no valid exception to the Privette doctrine in this case. They also argued that the plaintiff walked on the floor mat five days a week, at least three times per day over the course of two years without any issue. The court confirmed there was no evidence of a dangerous condition on the property and the floor mat was open and obvious.
Celeena B. Pompeo
Felder and Granata Prevail for Property Owner Against Commercial Tenant’s Contribution Claims in Subrogation Suit
Los Angeles partners Otis Felder and Valeria Granata obtained a good faith settlement order from the Los Angeles County Superior Court on behalf of a property owner and its property manager involved in a property damage subrogation lawsuit. The plaintiff, a subrogated insurer, sued a tenant, who then sued our clients along with their maintenance company for contribution, to recover the $5.4 million in damages the plaintiff insurer paid to its insured, a medical office. The plaintiff sought reimbursement for water damages caused by another tenant in our client's building. Pursuant to the service agreement between our clients and the maintenance company, which contained an indemnity provision, the maintenance company accepted our clients' tenders and, after years of litigation, agreed to pay the plaintiff its $1 million policy limits coverage contingent upon the court granting a good faith settlement motion barring all claims against it and our clients. The tenant defendant seeking contribution objected to the settlement and maintained that the court should consider our clients' excess policies. The court disagreed, finding no evidence of any duty owed by our clients directly to the tenants considering anti-subrogation waivers in their leases and a failure to preserve evidence. The court further found that our clients' excess policies were not material to the determination. Otis and Valeria's arguments and skillful representation emphasize the significance of successful use of tenders, anti-subrogation waivers and indemnification provisions in resolving claims against Wilson Elser's clients without their having to contribute to the settlement.
B. Otis Felder
Mulvaney and Sprys Obtain Summary Judgment for Retailer, Thwarting Assault Claim
Kevin Mulvaney (Partner-Detroit, MI) and Jeffery Sprys (Of Counsel-Detroit, MI) obtained summary judgment in the Wayne County Third Circuit Court, Detroit, Michigan, for Wilson Elser's client, an international retailer. In the amended complaint, the plaintiff alleges he was stabbed inside our client's Detroit store. The plaintiff allegedly visited the store to purchase shoes and speak with a store employee previously involved in a disagreement with the plaintiff's sister. The plaintiff and the store employee got into a physical altercation, resulting in the plaintiff being stabbed by the employee multiple times in the abdomen. The plaintiff underwent numerous surgeries at a local hospital and allegedly required extensive rehabilitation. The claims alleged in the complaint brought against Wilson Elser's client include negligence, gross negligence, recklessness, intentional infliction of emotional distress, negligent hiring, negligent training, negligent supervision and negligent infliction of emotional distress. During discovery, the plaintiff admitted to throwing the first punch and to having chased the employee throughout the store before sustaining any wounds. Kevin and Jeff argued that Michigan's Wrongful Conduct Rule bars recovery due to the plaintiff's culpability in starting the fight before being injured. They successfully maintained that the plaintiff's actions set in motion the foreseeable chain of events that led to his stabbing, with his actions the proximate cause of his injuries. The court concurred and dismissed the case, negating a last demand of $2.5 million.
Kevin M. Mulvaney and Jeffery S. Sprys
Crawford Obtains Summary Judgment on Cross-Claim against Codefendant
Shelby Crawford (Of Counsel-Los Angeles, CA) obtained summary judgment on behalf of a national construction rental company on cross-claims against a codefendant for defense and indemnity in this premises liability / personal injury suit based on the terms of the client's equipment lease agreement and Crawford v. Weather Shield Mfg. Inc., 44 Cal.4th 541 (2008).
O’Toole and Pegno Obtain Summary Judgment on Cross-Claims for Defense and Indemnity
John O'Toole (Partner-Madison, NJ) and Kristine Pegno (Associate-Madison, NJ) obtained summary judgment on cross-claims against a codefendant for defense and indemnification. In this premises liability suit, Wilson Elser represented the property owner and management company in a case involving an alleged fall by a plaintiff on black ice on the subject premises. The matter was tendered to the client’s snow removal contractor based on indemnification and additional insured provisions of the contract. When the contractor failed to respond to the tender, John and Kristine filed a motion for summary judgment on the cross-claims against the contractor for defense and indemnification.
Following oral argument, the NJ Superior Court, Law Division, Bergen County granted the motion for summary judgment and issued a 13-page decision in support of the order, adopting in large part our legal arguments. In addition to ordering the co-defendant to defend and indemnify our client, the court awarded attorneys’ fees. This was a big win for the client and resulted in a beneficial written opinion that will be useful in future defense and indemnity cases.
John P. O'Toole and Kristine Y. Pegno
Young and Saunders Obtain Summary Judgment for Multinational Financial Services Company in $1 Million Premises Liability Suit
Rebecca Young (Partner-Birmingham, AL) and Anna Saunders (Associate-Birmingham, AL) obtained summary judgment for a multinational financial services company in a case alleging significant bodily injuries suffered by a real estate agent during a property inspection at the client-owned property, and a claim by the agent’s wife for loss of consortium. The plaintiff agent fell when dilapidated brick stairs collapsed, throwing him forward where he landed on a hidden iron stake that ripped through his kneecap. The plaintiffs made a policy limits demand of $1,000,000, and alleged that the Wilson Elser client was aware of the dangerous condition, but failed to take action to keep the property in a reasonably safe condition. The case was filed in one of the most notoriously difficult venues in Alabama state court, but Rebecca and Anna were able to have the case removed to federal court, which then required the plaintiffs to pass the more strenuous hurdles of a heightened pleading standard and summary judgment sufficiency standards. The court’s decision was largely based on the federal standard for evidence sufficient to submit a case to a jury on the issue of “notice” and determined that the plaintiffs failed to meet this standard; the court entered a judgment as a matter of law for the defense because plaintiff could not demonstrate that the defendants had knowledge of the dangerous condition.
Rebecca A. Young
Lum and Seltzer Secure Unanimous Defense Verdict: Judge Refuses to Issue Spoliation Charge to Jury
Larry Lum (Partner-New York, NY) and Stacey Seltzer (Of Counsel, New York, NY) obtained a unanimous defense verdict after a liability trial in Nassau County Supreme Court involving a slip and fall at a semi-enclosed parking garage at our client’s casino. The plaintiff claimed she fractured her knee and the settlement demand was $250,000. The fall was captured on surveillance at multiple angles and played for the jury several times, along with photographs submitted as evidence of the location at the time of the accident seemingly depicting wet areas throughout the garage. Our defense expert was able to show that he tested the area in several locations while wet and found each area to be sufficiently slip-resistant. On cross examination of plaintiff’s expert, Larry and Stacey were able to poke holes in their testing, including methods used to arrive at the findings. Prior to the charge conference, plaintiff’s counsel requested a spoliation charge be given to the jury due to the fact that only 30 seconds of surveillance had been preserved prior to the accident, and the judge refused their request. Despite an uphill battle due to the fall being captured on surveillance, a clearly wet parking garage with what appeared to be obvious grime/grease, and a likable and sympathetic plaintiff, Larry and Stacey argued that any theories as to how the wet/grimy condition arrived in the garage were merely speculative on the plaintiff’s end, and there simply was no dangerous condition that could be pinpointed.
Larry Lum and Stacey L. Seltzer
Dodrill and Vance Muzzle Dog Attack Suit against Apartment Client
Colt Dodrill (Of Counsel-Phoenix, AZ) and Jenna Vance (Associate-Phoenix, AZ) obtained summary judgment for client apartment in dog attack case in Superior Court of the State of Arizona in and for the County of Maricopa. The plaintiff sued a tenant and our client for personal injuries sustained when the tenant’s Pit Bull leapt out of their apartment to attack him. The plaintiff claimed our client breached its non-delegable duty to keep inherently vicious animals off its premises. Jenna’s discovery confirmed the tenant’s dog was an emotional support animal under the Americans with Disabilities Act. Colt and Jenna moved for summary judgment, arguing the Federal Fair Housing Act barred our client from discriminating against the plaintiff, preempting the plaintiff’s state law negligence claims against our client. Colt and Jenna also argued as an issue of first impression that new Arizona statutes render no breed of dog per se vicious. Unable to reasonably oppose it, the plaintiff rolled over, allowing Colt and Jenna’s motion to be granted as unopposed.
Colt B. Dodrill
Felder and Chu Obtain Summary Judgment under the Trivial Defect Doctrine
Otis Felder (Partner-Los Angeles, CA) and Peter Chu (Associate-Los Angeles, CA) obtained summary judgment on behalf of a property owner and short-term property management company in a premises liability case where the plaintiff claimed $1.5 million in damages after tripping and falling on a concrete pathway in the property backyard. The plaintiff, an invitee on a rented property, filed a lawsuit claiming the owners were negligent in failing to properly maintain their vacation rental property. She had walked on the premises including the backyard when she arrived, and after returning from a boating trip while there was still light outside, she tripped and fell on her way toward the jacuzzi. The San Bernardino Superior Court granted summary judgment on the trivial defect doctrine, finding that the alleged dangerous defect was not significant given the differential in the height between two slabs in the backyard and other factors concerning the walkway. Alternatively, the court found that there was not a dispute in the evidence with respect to the two concrete slabs in the backyard, such that it was open and obvious to those who used the walkway.
B. Otis Felder and Peter Chu
Neff Secures Dismissal in Tragic Wrongful Death Case
Robert Neff (Of Counsel-Madison, NJ) successfully defended a city housing authority and the city’s police department, which had a shared services agreement with the authority to provide police patrols at a public housing development. The case involved a 19-year-old who was playing football with friends when he was shot in the chest in a drive by-shooting at the subject premises. The decedent’s estate, represented by his mother, filed a wrongful death complaint against the firm’s clients alleging the authority failed to staff a guard booth at the development’s entrance, allowing the van with four assailants to drive onto the property and open fire. After extensive fact discovery, the plaintiff attempted to serve an expert liability report after the court-ordered deadline had expired. Bob filed a motion to bar the report, which was granted. The plaintiff’s application to the Appellate Division for interlocutory review of the Order was denied, and consequently Bob moved for Summary Judgment, arguing that the plaintiff could not prove the case without expert testimony, that the facts did not raise a triable issue on breach of duty or proximate cause, and that immunity provisions in the Tort Claims Act barred the claims. The court granted Bob’s motion for lack of expert support and breach and proximate cause grounds on the facts. The court also found that immunity barred the complaint and dismissed the entire case, with prejudice.
Robert C. Neff Jr.
Donovan and Rice Secure Defense Verdict in Work Zone Liability Case
John T. Donovan (Partner-Philadelphia, PA) and Hannah Rice (Associate-Philadelphia, PA) secured a defense verdict on behalf of their client, a prominent road contractor in the Philadelphia area, after a non-jury trial in the Court of Common Pleas, Bucks County, Pennsylvania. The plaintiff suffered significant head injuries and orthopedic injuries in a motorcycle accident in a work zone and sued the Commonwealth and the contractor that had milled and marked the road. The plaintiff’s demand never dropped below seven figures despite the judge admitting plaintiff’s blood alcohol level and the fact that he was not wearing a helmet. The plaintiff presented three experts and the defense presented four, including an expert in the area of work zone safety. It is expected that the plaintiff will appeal the court’s decision.
John T. Donovan
Muse and Bannan Secure Damages Award Well below Demand in Wrongful Death Case
Dirk Muse (Of Counsel-Seattle, WA) and Carinne Bannan (Associate-Seattle, WA) obtained a favorable verdict in King County Superior Court, Washington, in a wrongful death case where the decedent’s estate asked the jury to award $87 million. The 78-year old decedent, suffering from stage IV breast cancer, was being transported to the hospital in the insured’s ambulance when it collided head-on with a freeway divider. The estate alleged that (1) the insured’s EMTs failed to properly secure the patient to the gurney with all available straps, and (2) that the driver failed to exercise due regard while driving an emergency vehicle. As a result of the accident, the decedent suffered multiple fractures to his ribs and spine and ultimately passed away approximately 7.5 hours later. The decedent’s sister was the only statutory beneficiary. Approximately six months before trial, Wilson Elser was asked to substitute in as counsel for the ambulance company. A month before trial, the parties mediated, but the estate never dropped below $22 million. Shortly before trial, Dirk and Carinne admitted liability and proceeded only on the issue of damages. In his closing argument, plaintiff’s counsel asked the jury to award $87 million. We suggested that $900,000 was a fair and reasonable award. After roughly three hours of deliberating, the jury returned a verdict for $2.3 million, significantly less than the $5 million policy limits and the estate’s ask to the jury.
Dirk J. Muse and Carinne Bannan
Burd and Dutton Obtain Dismissal of Premises / Workers’ Comp Case
James M. Burd (Partner-Louisville, KY) and Cyrus G. Dutton IV (Associate-Louisville, KY) succeeded in obtaining dismissal on behalf of a client in a case in which the plaintiff, an employee of a fuel company, delivered fuel to our client’s campus. While offloading the fuel into the appropriate tanks, the plaintiff slipped and fell off a ladder and was injured. Jim and Cyrus moved for Summary Judgment under the Workers’ Compensation Act, arguing our client was entitled to up-the-ladder immunity. Specifically, they argued that the delivery of fuel was a regular and recurrent part of our client’s business. Cyrus argued the motion, which was granted.
James M. Burd
O’Brien and Dutton Show Indiana Law Does Not Permit Third-Party Bad Faith Actions Against Insurance Carriers
Edward M. O’Brien (Partner-Louisville, KY/Indianapolis, IN) and Cyrus G. Dutton IV (Associate-Louisville, KY) represented an insurer in a case in which plaintiff was involved in a motor vehicle accident and asserted a claim against an automobile liability insurer, our client, for "unfair claims violations and bad faith” – a third-party bad faith claim. Specifically, the plaintiff alleged that our client "failed and refused to comply with Indiana's Unfair Claims Settlement Practices Act". Edward and Cyrus moved to dismiss for failure to state a claim for which relief can be granted as Indiana law does not recognize or permit third-party bad faith actions against insurance carriers. Cyrus argued the motion before Clark County Superior Court, and the motion was granted.
Edward M. O'Brien
Hanrahan, Warshauer and Choren Successfully Defend Local Government Agency
Catherine Hanrahan (Partner-Washington, DC) and DC associates Evan Warshauer and Pernell Choren obtained summary judgment in the Superior Court of the District of Columbia on behalf of a local government agency sued for allegations of negligence and breach of contract pertaining to the management of the plaintiff’s apartment. The court’s primary focus was on the sufficiency of plaintiff’s mandatory notice of claim pursuant to D.C. Code § 6-205(a). In their Motion to Dismiss, Catherine, Evan and Perry argued that not only were all of plaintiff’s alleged notices untimely, but none of them was submitted to the correct individual at the agency as set forth in the statute. The court ordered supplemental briefing from the parties to specifically address whether written notice was timely provided to the right person. Once that was completed, and with the Motion to Dismiss still pending, Catherine, Evan, and Perry opted to file a Motion for Judgment, further arguing that the plaintiff did not provide the mandatory notice of claim. In a 14-page decision, the court ultimately decided that the plaintiff failed to produce evidence to create a genuine dispute concerning whether she timely provided a mandatory notice of claim to the correct individual at the agency. Accordingly, the court granted the Motion to Dismiss and the Motion for Judgment.
Catherine A. Hanrahan and Pernell A. Choren
Hattar and Martin Obtain Dismissal of Personal Injury Action in Nassau County
Jacqueline Hattar (Partner-White Plains, NY) and Tyler Martin (Associate-White Plains, NY) obtained a voluntary dismissal in a personal injury action on behalf of the firm’s client, a commercial cleaning services company, in a trip-and-fall case in the New York State Supreme Court, Nassau County. The plaintiff, a 64-year-old woman, alleged she fell in the lower level of a garage located in Garden City, New York, and claimed facial fractures and spinal injuries. She claimed our client was negligent in allowing the ground floor to remain in an unsafe and “improperly sloped” condition. Based on the results of the firm’s investigation and the documentary evidence submitted, Jackie and Tyler were able to establish that Wilson Elser’s client did not cause or create any defective condition and was not responsible for the maintenance of the subject garage. The action is continuing against the property owner. This is the second dismissal that Jackie and Tyler have secured on behalf of this firm client within the past three months.
Jacqueline Hattar and Tyler J. Martin
Stephenson, Cash and Jolley Prevail on Appeal of Defense Verdict for National Self-Storage Company
Jeremy Stephenson (Of Counsel-Charlotte, NC), Joshua Cash (Partner-New York, NY) and Eleanor Jolley (Partner-Atlanta, GA) successfully defended the second-largest self-storage company in the country on appeal before the North Carolina Court of Appeals. The plaintiff, a customer of the client, sued under various commercial tort theories after her units were burglarized. After a winning defense in the jury trial, including a directed verdict on most counts and others prevailing before the jury, the plaintiff appealed and the appellate court issued an Opinion finding no error by the trial court, and securing a complete victory for the client.
Joshua Cash and Eleanor G. Jolley
Burke, O’Keefe and Caiazzo Bring in Verdict for $24 Million under Plaintiff’s Demand on a Damages-Only Labor Law Case
James Burke (Partner-White Plains, NY) and second-chair Bryan O’Keefe (Associate-New York, NY), with daily in-court assist by Nicholas Caiazzo (Partner-New York, NY), tried a damages-only case with a $25 million demand in Supreme Court, New York County. The plaintiff, a 47-year-old construction laborer claimed he was injured on a job site by a 6,000-pound pallet jack when its brakes failed and allegedly pinned him and causing a “crush” injury to his left great toe, requiring three surgeries that included failed hardware, and a multiple-level lumbar spine injury. He was awarded Labor Law 240(1) summary judgment and claimed an economic loss of $4 million and had a vocationalist testify he was unemployable. Jim, Bryan and Nick obtained excellent surveillance that showed the plaintiff acting for a three-year period completely inconsistently with his claims, and got the vocationalist to admit that in 30 years she could not recall the last time she ever helped a person get a job. They got plaintiff’s pain management doctor to admit that he did not know how to read an EMG/NCV test, and the podiatric surgeon to admit that he did not know anything about work-life disability for anything that was above the level of the knee. Our last offer to the plaintiff prior to the case going to the jury was $1.5 million, which the judge recommended, but by insisting on a verdict instead of a more modest payment that would have included a lien reduction, likely nets five figures. The jury returned a verdict for total damages at only $960,000. Moreover, since the plaintiff elected to take a verdict, he must pay a full $455,000 back to Workers’ Comp.
James F. Burke and Cav. Nicholas R. Caiazzo
Breen and Endler Obtain Defense Verdict in Premises Liability Case
Brian F. Breen (Partner-Philadelphia, PA) and Jesse M. Endler (Of Counsel-Philadelphia, PA) obtained a defense verdict in a case in which the plaintiff alleged she was on a concrete walkway at our client’s motel, turned to walk toward a trashcan, but failed to recognize a single step to a lower level, causing her to fall and fracture her elbow and injure her shoulder. The shoulder injury required arthroscopic decompression surgery after cortisone injections failed to provide relief, and plaintiff’s treating physician testified plaintiff was left with permanent strength and mobility limitations. The plaintiff's husband made a claim for a loss of his wife's services. Plaintiff claimed the concrete on the lower level was the same color as the edge of the upper elevation, making it appear as though it was a single elevation. Plaintiff's liability expert argued the similarity of colors at the change in elevation created a hazardous condition in violation of the International Property Maintenance Code and that it should have been marked with a contrasting paint color. Brian and Jesse argued the change in elevation was not a hazardous condition and that there is no requirement the edge of a single step be marked in any fashion. They also argued that there were numerous visual cues that should have alerted plaintiff to the change in elevation. The jury returned a verdict finding that our client was not negligent.
Brian F. Breen and Jesse M. Endler
Shapiro, Kim and Del Gatto Obtain Dismissal That Expands Case Law on FAAAA Preemption of State Law Claims
Beata Shapiro (Partner-Boston, MA), Anne Kim (Associate-Boston, MA) and Brian Del Gatto (Partner-Phoenix, AZ) obtained dismissal of a suit claiming more than $3 million in damages for theft of a shipment of cell phones in the U.S. District Court, Southern District of Florida based on federal preemption of state law claims under the Federal Aviation Administration Authorization Act (FAAAA), and on the plaintiff's failure to sufficiently plead a breach of contract claim. The decision is particularly significant in that it expands case law on FAAAA preemption to apply to claims against non-brokers and non–motor carriers to any party that is involved in the arrangement for transportation of cargo, such as shippers. Our client had a contract with the shipper to provide warehousing services and occasionally arrange for outbound transportation of its customer’s goods. Our client hired a freight broker to arrange the shipment with a motor carrier, and the broker hired a motor carrier to transport it. That motor carrier hired another motor carrier. The shipment was stolen while in the possession of the second motor carrier. On motion, Beata, Anne and Brian argued that the FAAAA's explicit preemption applies to the negligence claim against our client, even though our client was not a broker or a motor carrier, because such claims would seek to indirectly regulate the prices, routes and services of brokers and motor carriers. The court granted the motion, finding that the negligence claim by the plaintiff seeks to indirectly regulate the prices, routes and services of motor carriers and brokers, and is therefore preempted under FAAAA. In dismissing the breach of contract claim as well, the court determined that the plaintiff cannot merely argue that just because the cargo was stolen, our client must have breached the contract. The court further held that the dismissal was with prejudice and that the plaintiff could not seek to amend the complaint.
Beata Shapiro, Anne V. Kim and Brian Del Gatto
Perez and Thomas Win Summary Judgment as Contractual Obligation Did Not Give Rise to Tort Liability
Raymond Perez (Partner-White Plains, NY) and Suma Thomas (Of Counsel-White Plains, NY) obtained summary judgment in a case in which a welder sought recovery for personal injuries sustained when a piece of hot metal fell and burned through work pants provided by our client, a uniform supplier. Ray and Suma moved for summary judgment on the grounds that the client had no duty to the welder, whose non-party employer ordered uniforms that were not fire retardant. The court agreed that the employer, not the uniform supplier, was in the best position to know the type of uniform required. The supplier’s duty was based solely on its contractual relationship with the employer. The supplier did not owe the welder a duty to recommend a fire retardant uniform absent a request.
Raymond Perez and Suma S. Thomas
Page 6 of 9
Events
DeMicco Granted Summary Judgment on Lack of Personal Jurisdiction over Client
Garden City, New York, partner Thomas DeMicco secured summary judgment for lack of personal jurisdiction on behalf of a major international hotel chain client in an action filed in the New York State Supreme Court, Jefferson County. The plaintiff claimed to have suffered injuries after an alleged slip-and-fall accident at the client’s resort and casino located in Aruba. A motion for summary judgment was filed at the outset of the case, before discovery was exchanged, on the grounds that the court lacked personal jurisdiction over our client since the client’s limited contacts with the state of New York did not give rise to the cause of action. The plaintiff’s alleged accident and resulting injuries all occurred in Aruba. The client is a Delaware corporation with its headquarters in Maryland. The only connection with New York was the fact that the plaintiff resided in New York. Following a hearing before the Hon. James McClusky, the court returned a decision on the motion, granting summary judgment in favor of our client and dismissing the plaintiff’s Complaint. Law clerk Amanda Rangasammy assisted in the preparation of the brief and supporting motion papers.
Thomas M. DeMicco
Greenfield, Cash and Lum Prevail in Notorious Pro-Plaintiff Bronx County on Behalf of Largest Casino Operator in New York City
Benjamin Greenfield (Of Counsel-Philadelphia, PA), Joshua Cash (Partner-New York, NY) and Larry Lum (Partner-New York, NY) succeeded in convincing the Supreme Court of the State of New York County of Bronx, Civil Term, to deny the plaintiff’s motion to certify its action as a class action on behalf of their client, the largest casino operator in New York City. The plaintiff was banned from the casino for smashing a gaming machine at which he was losing money (and his refusal to pay for the damage). The plaintiff attempted to certify his claims as a class action arguing that the casino improperly demands restitution and threatens arrest if patrons refuse to pay for the costs of repairs to the property they damaged. Ben, Joshua and Larry relied on NYS Gaming Bulletin #22, which required the casino to detain individuals suspected of damaging casino property and to conduct an individualized investigation into the actions of each patron. The plaintiff argued that the Bulletin was null and void and without legal effect as it was not filed in the office of the department of state, and that it denied those patrons due process. The Hon. Veronica G. Hummel, A.J.S.C., in an extremely notable manner, ruled that Bulletin # 22 is “a valid directive issued by the Gaming Commission that is legally binding on [the casino] and governs and authorizes certain actions by [the casino].” At the very early stages of this matter, the plaintiff’s attorneys attempted to force our client into an early settlement by having an article published in the New York Post.
Joshua Cash, Larry Lum and Benjamin D. Greenfield
Severino, Verde and Lai Granted Dismissal of Plaintiff’s Independent Causes of Action
Mark Severino (Partner-Las Vegas, NV) and Las Vegas associates Brandon Verde and I-Che Lai were granted their motion to dismiss in District Court, Clark County, Nevada, on behalf of an insured client in an automobile accident case. The plaintiff filed his complaint claiming independent causes of action for attorneys’ fees, and pain and suffering. Mark, Brandon and I-Che filed a motion to dismiss regarding the plaintiff's independent causes of action for attorneys' fees and pain and suffering as not cognizable independent claims for relief and inappropriate vehicles for relief in Nevada. The court agreed and granted our motion to dismiss.
Mark C. Severino
Hattar and Martin Obtain Dismissal of Personal Injury Action in Nassau County
Jacqueline Hattar (Partner-White Plains, NY) and Tyler Martin (Associate-White Plains, NY) obtained a voluntary dismissal in a personal injury action on behalf of a commercial janitorial services company in a trip-and-fall case in the New York State Supreme Court, Nassau County. The plaintiff, a 61-year-old woman, alleged that she fell in the parking lot at a shopping mall due to a defective condition on the ground. Based on the results of the firm’s investigation and the documentary evidence submitted, Jackie and Tyler were able to establish that Wilson Elser’s client did not cause or create any defective condition and was not responsible for the maintenance of the subject premises. As a result of the alleged accident, plaintiff claimed facial fractures and spinal injuries, and that she required future anterior cervical discectomy and fusion. The action is continuing against the property owner.
Jacqueline Hattar and Tyler J. Martin
Tatarka, Vespole, Iammatteo and Bakir Secure Summary Judgment Against $15 Million Demand in Motor Vehicle Accident Case
Gregg Tatarka (Partner-White Plains, NY) and Mark Vespole (Partner-Madison, NJ), assisted by Madison, NJ associates Matthew Iammatteo and Mellis Bakir, obtained summary judgment in the Superior Court of New Jersey, Essex County, for Wilson Elser's client, a manufacturer and distributor of home appliances. The plaintiff is a 19-year-old woman suffering the double amputation of her legs after being struck by a tractor-trailer swerving onto the shoulder while trying to avoid the plaintiff's disabled vehicle left in the roadway. The co-defendant's driver operated the tractor-trailer; the co-defendant is a trucking company contracted by our client for appliance delivery services.
The plaintiff alleges our client was negligent in hiring and retaining the trucking company. Gregg argued the client owed no duty to the plaintiff and performed a reasonable investigation into the company, confirming it was insured, registered, authorized to operate as a motor carrier and had a "Satisfactory" rating with the Federal Motor Carrier Safety Administration. He further argued that a product shipper is not held to the same duty as a motor carrier broker and that the plaintiff's argument ostensibly turns any product shipper into a guarantor for any motor carrier's negligence.
The court granted Wilson Elser's motion for summary judgment, holding that the carrier was competent to perform the task for which it was retained and concurring that our client performed reasonable due diligence in selecting and retaining the motor carrier. The case was dismissed with prejudice, denying the plaintiff's $15 million demand to our client.
Gregg A. Tatarka, Mark R. Vespole and Mellis Bakir
Boulé and Swanson Obtain Jury Verdict in Assault, Battery, Wrongful Arrest and Malicious Prosecution Case for Major Hospital System
Eugene Boulé (Partner-New York, NY) and Suzanne Swanson (Of Counsel, New York, NY) successfully defended one of New York's largest health care providers in a trial in Richmond County Supreme Court for alleged assault, battery, wrongful arrest, malicious prosecution and intentional infliction of emotional distress by the hospital’s security staff. After a trial that included testimony from eight current and former employees of our client, the plaintiff, the plaintiff's wife and a psychologist, the jury returned a unanimous defense verdict on six separate causes of action against the hospital and its staff. Plaintiff's father was a patient at the hospital and plaintiff visited him up to three times per day for several days preceding the incidents that led to a violent altercation between the plaintiff and security. Plaintiff claimed that a doctor intentionally stopped giving his father pain medication in retribution for the plaintiff unwittingly giving a sandwich to a patient who was scheduled to undergo surgery, leading to his distress and persistence in pursuing the hospital staff for treatment of his father. The plaintiff was banned from entering the hospital, which resulted in an altercation with security.
Special thanks to Daphney Lebrun who worked tirelessly in contacting and arranging meetings with more than 20 witnesses in the week prior to trial, and to Suzanne Swanson who did a masterful job in discovery, preparing the case for trial and providing critical support during the trial.
Eugene T. Boulé and Suzanne S. Swanson
Felder and Turner Obtain Summary Judgment in Premises Liability Suit
Otis Felder (Partner-Los Angeles, CA) and Vladyslava Turner (Associate-Los Angeles, CA) obtained summary judgment in a case where the plaintiff/workman fell from a roof and sued our client property owner and property manager claiming an unsafe condition. Following his five-story fall, the workman was hospitalized for months and, although he received workers’ compensation benefits, claimed millions of dollars in medical expenses, loss of income, and pain and suffering. The case was originally removed to federal court then voluntarily dismissed only to be re-filed in state court, adding defendants, to prevent federal jurisdiction. After filing for summary judgment based on the Privette Doctrine, a judicially created prohibition against suing a property owner when an employee of an independent contractor suffers an injury during the course and scope of work, Vlada and Otis convinced the LA Superior Court that the plaintiff could not meet his burden in this case as the uncontroverted testimony showed that the edges of the roof had no protective parapet and presented an open and obvious risk of which the plaintiff's supervisor and employer should have been aware. The court agreed finding there was no evidence supporting the plaintiff's claims. The Court noted that when a person or organization hires an independent contractor, the hirer presumptively delegates to the contractor the responsibility to do the work safely. Once the presumption arises, the burden shifts to the plaintiff to raise a triable issue of fact as to whether one of the exceptions to the Privette Doctrine applies, and if it cannot, the defendant is entitled to summary judgment.
B. Otis Felder and Vladyslava Victoria Turner
Lowry and Pattillo Obtain Summary Judgment for Retailer in Slip-and-Fall Case
Michael Lowry (Partner-Las Vegas, NV) and Jonathan Pattillo (Associate-Las Vegas, NV) obtained summary judgment in the U.S. District Court, District of Nevada for a national discount retailer. The plaintiff alleged she was injured after slipping and falling on a spill in one of our retailer client’s Las Vegas stores. However, Michael and Jonathan obtained video that documented the spill was created just seven minutes before the fall. While the parties disputed whether Nevada law considers the length of time a spill existed as an element of notice, the court concluded even if that was considered, summary judgment was appropriate given the factual circumstances of the spill's creation.
Michael Lowry and Jonathan C. Pattillo
Eagle and Llopis Obtain Summary Judgment Week before Trial after Five-Year Litigation
Ashley R. Eagle (Of Counsel-West Palm Beach, FL) and Nicole M. Llopis (Associate-Miami, FL) obtained summary judgment in the 15th Judicial Circuit, Palm Beach County, Florida, on behalf of our client cleaning service and a mall. The plaintiff alleged that she slipped on a liquid substance located in an employee corridor of the mall. The plaintiff subsequently underwent a left knee arthroscopy with a partial medial meniscectomy, partial synovectomy and PRP graft. Adding to the complexity of the case was surveillance video of the fall and photographs that showed a possible substance on the floor. The plaintiff had steadily maintained her demand for multiple six figures. Ashley and Nicole filed their motion for final summary judgment, arguing that the plaintiff failed to cite any record evidence that the insureds had actual or constructive notice of the transitory foreign substance and therefore could not meet the notice requirements under Florida Statute 768.0755. In a lengthy and well-reasoned opinion, the court granted summary judgment in its entirety in favor of the insureds.
Wilson Elser National Team in Hot Pursuit of Phone Records Secures an Appellate Division Affirmance
Patrick Lawless (Partner-New York, NY), Brian Del Gatto (Partner-NY/CT/AZ/WA), Douglas Connors (Partner-Stamford, CT) and Andrea Strain (Of Counsel-Stamford, CT) teamed to defeat an appeal before the Supreme Court of the State of New York, Appellate Division, Second Judicial Department to recover damages for personal injuries from an order of the Supreme Court, Queens County in an alleged slip-and-fall incident. The plaintiff offered contradictory statements, first in the emergency room stating that he was talking on his cell phone at the time of the accident, and later at his deposition, denying he was talking on his cell phone when the accident occurred. In defense of our major Canadian aerospace client and our nationally represented insurer, the team moved, inter alia, to compel the production of the plaintiff’s cell phone records, and the Supreme Court directed the plaintiff to produce the records within 30 days, resulting in this from the Court: “Here, the willful and contumacious character of the plaintiff’s conduct can be inferred from his repeated failure to respond to the defendants’ demands for discovery of his cell phone records, his failure to meaningfully and timely comply with the Supreme Court’s order directing such disclosure, and his failure to provide any reasonable excuse for these failures … Even after the conditional order of dismissal was issued, which again directed the plaintiff to produce his cell phone records, the plaintiff still did not comply with the court’s directive. Accordingly, the court properly, in effect, upon re-argument, adhered to its prior determination conditionally granting that branch of the defendants’ motion, which was pursuant to CPLR 3126(3) to dismiss the complaint.”
With a consistent settlement demand of $10 million or more throughout the case, the clients were delighted with the outcome.
Brian Del Gatto, Douglas M. Connors and Patrick J. Lawless
Bashor and Nelson Secure Summary Judgment in Fibroblast Case
Karen L. Bashor (Partner-Las Vegas, NV) and Kimberly Nelson (Associate-Las Vegas, NV) obtained summary judgment on reconsideration in the District court of Clark County, Nevada on behalf of the firm’s clients – an esthetician/cosmetologist and her LLC. The plaintiff claimed her face was burned, scarred and left disfigured following a non-invasive cosmetic procedure, fibroblast. After filing an answer to plaintiff’s complaint, Karen and Kim filed their motion for summary judgement as a matter of law on the enforceability of a waiver of liability signed by the plaintiff, which waived, released and discharged defendants from all claims for liability, including personal injury arising out of negligence. The waiver included language that the plaintiff recognized side effects may occur. Our motion was denied because the waiver of liability did not include the word “burn” as a possible side effect. As Nevada case law does not require the specification of all plausible injuries for waiver of liability to be enforceable, Karen and Kim filed a motion for reconsideration. Two days prior to mediation, where the demand was near seven figures, the district court judge not only agreed the prior decision was erroneous warranting reconsideration, but granted summary judgment in favor of our clients on all causes of action, agreeing that the plain language of the waiver, warning of redness of the skin, inflammation and irritation, was sufficient to shield defendants from liability and dismiss the entire case.
Karen L. Bashor and Kimberly A. Nelson
Boulé and Scoditti Obtain Jury Verdict in Favor of NY’s Largest Health Care Provider
Eugene Boulé (Partner-New York, NY) and Elizabeth Scoditti (Associate-New York, NY) successfully defended New York's largest health care provider in a premises liability action in Richmond County Supreme Court. The jury returned a verdict in favor of a Staten Island hospital following a one-week trial. The plaintiff claimed she seriously injured herself when she was forced to walk on an uneven, 12-inch wide strip of concrete where no signs or barricades were present to prevent pedestrian access. She further alleged that this strip of concrete was similar in color to the adjacent walkway, thereby appearing to be an extension of the walkway and that the hospital failed to take any measures to ensure this area was safe. Gene and Elizabeth argued that no reasonable person would assume the 12-inch strip was a walkway, and therefore it was not foreseeable that the plaintiff or anyone else would have walked on it. They also presented the jury with other sensible routes the plaintiff could have taken if she were acting reasonably. The jury concluded that the plaintiff failed to meet her burden of proof with credible evidence and found no negligence on the part of the hospital. The settlement demand to the hospital was never less than $1.25 million throughout the trial.
Eugene T. Boulé and Elizabeth Scoditti
Lum and Seltzer Obtain Defense Verdict in Unified Trial in New York County
New York Partner Larry Lum and Of Counsel Stacey Seltzer obtained a defense verdict for our client after a unified trial in New York County Supreme Court for an accident involving a motor vehicle operated by our client’s corporate executive in the course of his employment. The plaintiff claimed that our driver’s SUV, also occupied by two other corporate executives, sideswiped her vehicle on the driver’s side while veering into her lane as she was making a right-hand turn in Manhattan. We produced our driver and one of the corporate executives at trial and both testified that their vehicle maintained a straight path, and it was the plaintiff who caused the accident. We were able to highlight to the jury the credibility issues surrounding the plaintiff’s testimony from a liability and damages standpoint. The plaintiff claimed two fractures to her right hand for which she ultimately underwent carpal tunnel surgery. We were able to produce missing visit notes, the fact that the plaintiff had profound arthritis predating the accident, and that the carpal tunnel could be seen bilaterally further proving that it was a preexisting condition. Moreover, our expert witnesses all disputed that plaintiff even suffered a second fracture to her hand, casting doubt on the plaintiff’s expert’s findings. The plaintiff’s settlement demand before trial was $600,000, and her counsel asked the jury to award plaintiff $1.25 million in past and future pain and suffering.
Larry Lum and Stacey L. Seltzer
Farmer, Cahill and Lawless Score Home Run for Baseball Venue
Jana Farmer (Partner-White Plains, NY), Pat Lawless (Partner-New York, NY) and John Cahill (Associate-White Plains, NY) secured summary judgment in a Little League matter pending before the New York Supreme Court, Suffolk County on the eve of mediation. The plaintiff, a spectator at our client town and Little League franchise baseball game, was struck by a foul ball from another field. She alleged a concussion, TBI and other neuropsychological symptoms as a result. Throughout discovery, Jana, Pat and John established that the plaintiff was a dedicated “baseball mom” who regularly attended professional games and watched baseball on TV. She was aware of the risks of being hit by foul balls. The court noted that our clients had provided adequate protective screening and were able to demonstrate through an experienced baseball field design expert that the protections they offered exceeded industry standards.
Jana S. Farmer, John P. Cahill and Patrick J. Lawless
Duff Wins Seventh Circuit Appeal in Complex Bank Fraud Case that Spanned a Multitude of Years
Thomas Duff (Associate-Chicago, IL), in a bank fraud claim against our client bank, convinced the Seventh Circuit to affirm the Southern District of Illinois’ grant of our motion to dismiss for failure to state a claim. The plaintiff and her late husband signed a series of promissory notes to support businesses and properties they owned. We represented one of the banks holding the notes. The plaintiff and her husband filed for bankruptcy in 2014 and did not list any legal claim as an asset. Five years after the closing of the bankruptcy estate, the plaintiff sued the banks and several employees, asserting claims of breach of fiduciary duty, fraud, conspiracy, false statements, embezzlement, and obstruction of justice. The plaintiff’s complaint alleged that the defendants altered some of the promissory notes after they were signed, causing her and her husband to file for bankruptcy. Notably, she relied on numerous federal criminal statutes as the basis for her claims. The district court granted our motion to dismiss for failure to state a claim, holding the plaintiff lacked standing to pursue these claims since they were not disclosed in the plaintiff’s bankruptcy proceedings and therefore belonged to the bankruptcy estate, and that none of the criminal statutes cited authorized a private right of action. The plaintiff appealed to the Seventh Circuit, where we argued the district court’s dismissal with prejudice was proper since the plaintiff was afforded two opportunities to plead her claims, and any additional amendment of her complaint would be futile given her failure to meet the heightened pleading standard for fraud claims under Federal Rule of Civil Procedure 9(b). The Seventh Circuit affirmed, agreeing with Thomas that the criminal statutes relied on by the plaintiff did not support a private right of action and that any claims belonged to the bankruptcy estate rather than the plaintiff. In light of these legal conclusions, the Court agreed with us that the district court’s dismissal with prejudice was proper.
Hattar and Kohn Obtain Voluntary Dismissal in Kings County of Personal Injury Action
Jacqueline Hattar (Partner-White Plains, NY) and Allen Kohn (Associate-New York, NY) obtained a voluntary dismissal of a personal injury action on behalf of a property owner and management company in the New York State Supreme Court, Kings County. Plaintiff claimed that she slipped and fell on the floor inside our client’s building in Brooklyn due to a defective condition, thus sustaining multiple injuries. Jackie and Allen argued that our clients neither created the alleged defective condition nor had actual and/or constructive notice of the condition, and were able to secure a discontinuance of the action prior to depositions.
Jacqueline Hattar
Adams, Hollis and Webb Secure Summary Judgment in Negligent Entrustment Case
Kent Adams (Partner-Houston, TX), Danielle Hollis (Of Counsel-Houston, TX), and Michael Webb (Associate-Houston, TX) were successful in obtaining summary judgment and complete dismissal for their client, a family-owned drilling company, in Guadalupe County, Texas. The plaintiffs sued the drilling company for negligent entrustment after its employee was involved in a motor vehicle accident with the plaintiffs. Kent, Danielle and Michael showed the court that the plaintiffs could not establish all of the elements of a negligent entrustment claim to take the matter to trial. The court agreed and dismissed the plaintiffs’ claims against the drilling company with prejudice. The plaintiffs alleged more than $1 million in past and future medical treatment, with a last demand of $6 million, and they refused to negotiate below that amount.
Danielle L. Hollis and Kent M. Adams
Napoli Obtains Summary Judgment in Premises Liability Matter
Nicholas Napoli (Of Counsel-White Plains, NY) convinced the New York Supreme Court, Bronx County that the plaintiff's unreasonable and unforeseeable decision to climb a fence on our client property owner’s premises was a superseding intervening act that absolved our client of any liability. The plaintiff was a visitor at the property, who decided to exit the building via a clearly marked emergency exit that opened into an enclosed outdoor area separated from the public sidewalk by a seven-foot fence with a gate that was kept locked except for emergencies. The emergency door had locked behind her for security. After 10 minutes confined within the outdoor area, despite having her cell phone to contact management for assistance, plaintiff decided to climb over the fence and fractured both her legs jumping down onto the sidewalk. Nick, rather than retaining a competing expert, moved for summary judgment, arguing that even if the building violated code, which was not corroborated by other evidence, it would not constitute the proximate cause of plaintiff's injuries. The court accepted their arguments and granted the motion dismissing plaintiff's action in its entirety.
Nicholas R. Napoli, lll
Dodrill and Foster Convince Nevada Court to Adopt McHaffie Rule to Void Redundant Claims Against Trucking Client
Colt Dodrill (Of Counsel-Las Vegas) and Shirley Foster (Associate-Las Vegas) obtained partial summary judgment of a plaintiff’s negligent hiring, training and supervision claims against our client trucking company. The plaintiff alleged both direct and vicarious liability claims against our client for reptile purposes, including propounding burdensome and harassing discovery into the client’s business records and seeking adverse inferences for any missing documents. In an issue of first impression in Nevada, the trial judge found the Nevada Supreme Court would adopt the McHaffie rule, which renders direct liability claims redundant when the defendant admits the driver was in the course and scope of employment at the time of the accident. The judge initially denied Colt’s motion by carving out an exception for punitive damages cases. On reconsideration, Colt convinced the court there were no facts supporting a punitive damages claim and maintenance records were not relevant absent a negligent maintenance claim.
Colt B. Dodrill
Lowry Beats Offer of Judgment at Trial
Michael Lowry (Partner-Las Vegas, NV) obtained a jury award in the Eighth Judicial District Court, Las Vegas that was less than the defense offer of judgment in an admitted liability, damages-only trial. Michael represented a well-known restaurant chain concerning a slip and fall. Video captured the relevant events and liability was admitted. The trial was limited to the extent of plaintiff's injuries.
Michael Lowry
Lowry and Pattillo Secure Summary Judgment for RV Dealership
Michael Lowry (Partner-Las Vegas) and Jonathan Pattillo (Associate-Las Vegas) were granted summary judgment in the Eighth Judicial District Court in Las Vegas on behalf of an RV dealership client against a warranty claim. After purchasing an RV, the plaintiffs alleged they immediately began experiencing problems, and filed suit seeking to unwind the purchase and consequential damages. The court granted Michael and Jonathan summary judgment at the end of discovery, as the plaintiffs had not designated an expert witness to explain how the RV's systems worked and why the system was allegedly defective. Also, the losses plaintiffs alleged were economic losses, and finally, plaintiffs had not preserved the RV in a way that provided the dealership meaningful access to assess its condition. The plaintiffs did not dispute these points, instead arguing dismissal without prejudice was appropriate per Rule 41(a)(2). As the statute of limitations on the contract had not yet expired, that would have allowed them to re-file the case. The court rejected that argument, noting it came just 48 days before the start of the trial stack to which the case was assigned. The customer later dismissed in lieu of appealing in exchange for a waiver of costs.
Michael Lowry and Jonathan C. Pattillo
Dell and Graham Score Summary Judgment in Storefront Trip-and-Fall Case
Greg Dell (Partner-New York, NY) and Omar Graham (Associate-New York, NY) secured a summary judgment in a trip-and-fall case on behalf of a national communications client. The plaintiff alleged personal injuries as a result of tripping and falling due to a defect in the curbstone in front of a store our client did not own or operate, but was in fact owned by one co-defendant and leased and operated by another co-defendant, an authorized retailer of our client’s products and services. Plaintiff’s counsel inexplicably refused to discontinue after delaying his response for over a year, and instead preferred to force motion practice. Greg and Omar were able to show based on the definitions in the New York Administrative Code that a curb is actually considered part of the roadway, not the sidewalk, arguing on summary judgment that we had no legal connection to the defect or the property. At oral argument, plaintiff’s counsel argued that our motion should be denied to explore whether the defect could have been created by a client entity considering the presence of the store, but we were able to quickly establish that the defect actually predated the presence of the store and thus clearly there was no connection at all. Justice Patria Frias-Colon, New York State Supreme Court in Kings County, agreed with our arguments, and conversely found all of plaintiff’s arguments on opposition to be without merit. The motion was prepared and argued by Omar.
Gregory J. Dell
Felder and Granata Demurrer Sustained without Leave and Motion to Strike Granted
Otis Felder (Partner-Los Angeles | San Diego) and Valeria Granata (Of Counsel-Los Angeles) defended a golf course management company against allegations it was negligent as well as strictly liable for trespass and nuisance in allowing water, silt and soil to cause a flood on the plaintiffs’ property. The state court granted the plaintiffs trial preference based on their advanced age but sustained a demurrer on the basis that they failed to make a proper showing of a "taking" required as part of an elder abuse claim that would have entitled them to recovery of attorney fees. While the San Diego Superior Court found that the plaintiffs were correct that the right to use their property is contained in the "bundle" of property rights that can be taken, they did not allege the existence of a taking. The court also struck allegations against the property owner as to the same causes of action and found that they had improperly tried to add them as defendants without seeking leave to amend. Upon the court finding plaintiffs could not recover attorney fees under the elder abuse statute, the case was resolved.
B. Otis Felder
Muse and Connell Win Motion to Dismiss on Failed Service of Process
Dirk Muse (Of Counsel-Seattle) and Erik Connell (Of Counsel-Seattle) had a motion to dismiss granted in the District Court of King County, Washington, in a slip and fall claim against Wilson Elser’s client, an international commercial real estate company. The plaintiff alleged injuries arising from a slip and fall in a shopping mall owned by our client. While the plaintiff filed the case within the three-year statute of limitations, she failed to serve the summons and complaint within Washington’s 90-day tolling period. Dirk and Erik filed a motion to dismiss based on the lack of timely service. Despite the plaintiff’s arguments of waiver and equitable estoppel, the judge granted Wilson Elser’s motion, resulting in dismissal.
Dirk J. Muse and Erik Connell
Stephenson Preserves Over 50 Percent of Final Demand For Client
Jeremy Stephenson (Of Counsel-Charlotte) successfully held a plaintiff verdict to just under half the final demand in Guilford County Superior Court, Greensboro, for Wilson Elser's client, a real estate builder operating an SUV. While riding his motorcycle, the plaintiff alleges that our client struck him while making a U-turn in traffic in his SUV and backing up to complete the turn. The plaintiff had two surgeries but experienced no lost wages. Jeremy argued there was no liability and claimed contributory fault on the part of the plaintiff in failing to keep a lookout while operating his motorcycle. Wilson Elser's client could not testify due to poor health, while a police officer testified against him. The plaintiff's final demand was $395,000. The jury deliberated for three hours and returned a verdict of liability for $175,000, amounting to less than half of the plaintiff's lowest demand at mediation and less than half of the plaintiff's final ask in closing.
Lowry and Brown Earn Summary Judgment via Physical Facts Rule
Michael Lowry (Partner-Las Vegas) and Kevin Brown (Of Counsel-Las Vegas) obtained summary judgment for a resort on the Las Vegas Strip in a case where a guest alleged she was injured, claiming that as she approached an elevator, the doors suddenly closed and struck her. She then fell and was injured. Her last computation of damages alleged more than $422,000 in past medical specials alone. The resort had video in the elevator car from an hour before and after the fall. It showed the elevator doors opening normally and opening and closing in the same time period when the plaintiff fell. The video also showed the doors’ sensors appropriately responded when objects were placed in their way. The Eighth Judicial District Court, Las Vegas granted summary judgment based on the physical facts rule. The objective evidence shown on the video could not be overcome by other evidence speculating about whether the elevator was not properly maintained.
Michael Lowry and Kevin A. Brown
Severino and Foster Granted Motion to Dismiss in Third-Party Complaint
Mark Severino (Partner-Las Vegas) and Shirley Foster (Associate-Las Vegas) successfully moved to dismiss all allegations in a third-party complaint set forth against the firm’s client, a roadway traffic control services vendor, maintaining that the client had zero involvement in causing plaintiff’s peril or personal injuries. Mark and Shirley’s motion to dismiss was granted and the client was expeditiously dismissed from the civil matter. They persuasively briefed and successfully defended the client within one month after assignment, even though the case had already been proceeding against other parties for more than two years.
Mark C. Severino
Rebholz and Vance Achieve Trial Victory in $4 Million Flesh-Eating Bacteria Case
Jennifer Rebholz (Of Counsel-Phoenix, AZ) and Jenna Vance (Associate-Phoenix, AZ) won an extremely favorable verdict in a civil jury trial in Phoenix, Arizona, on behalf of the firm’s apartment complex client. The plaintiff alleged a myriad of significant physical injuries including necrotizing fasciitis with more than $400,000 in medical specials, claiming a closet rod fell on her in her apartment. The plaintiff had sought $4 million in damages, but Jennifer and Jenna focused on the plaintiff’s intentional act of punching the wall as the cause of her injuries. Jenna’s direct of the treating physicians established glaring inconsistencies between the medical records and the plaintiff’s testimony, casting tremendous doubt on the plaintiff’s veracity. During an aggressive cross-examination of the plaintiff, Jennifer restrained from pointing out previously admitted photographs that conclusively refuted claims of the alleged dangerous condition, waiting instead to emphasize that to the jury during a particularly damning closing argument. Jennifer’s closing further focused on the plaintiff’s admission during her own counsel’s direct that our client’s maintenance staff had been in her unit on multiple occasions prior to the incident, further refuting claims of wrongdoing against the client. After deliberating for less than three hours, the jury found the plaintiff 90 percent at fault for her injuries, which the jury limited to a paltry $15,000. That netted a verdict against the insured of only $1,500. Because that was a mere fraction of client’s pre-trial offer of judgment, client is entitled to a considerable monetary judgment against the plaintiff, providing substantial leverage against the threat of post-judgment motions and appeals.
O’Toole and Pegno Win Summary Judgment With Carefully Crafted Requests For Admissions
John O’Toole (Partner-Madison, NJ) and Kristine Pegno (Associate-Madison, NJ) obtained summary judgment in the Superior Court of New Jersey – Camden County for Wilson Elser’s client, a national property management company. The plaintiff alleged injuries resulting from a fall on our client’s property. The complaint identified the client’s apartment complex as the location of the fall. Still, the answers to interrogatories were ambiguous and suggested a site that was not a part of the subject premises. This uncertainty prompted John and Kristine to carefully craft requests for admissions, a little- used but valuable discovery tool, forcing the plaintiff to admit that the address where the injury occurred was not on our client’s property. Based upon the plaintiff’s admissions, John and Kristine filed a motion for summary judgment, arguing that Wilson Elser’s client owed no duty of care to the plaintiff as a matter of law. The court agreed and dismissed the complaint in its entirety.
John P. O'Toole and Kristine Y. Pegno
Lee and Parminter Win Summary Judgment For Ski Resort in Wrongful Death Suit
Gregory Lee (Partner-Los Angeles) and Steven Parminter (Partner-Los Angeles) secured summary judgment in the Superior Court of California, County of El Dorado, in a wrongful death lawsuit against Wilson Elser's client, a Lake Tahoe ski resort. The case arises from a ski accident involving a beginner skier who died after falling off the side of a green circle trail at the ski resort. Greg and Steve filed a motion for summary judgment pursuant to the express assumption of the risk defense, arguing that the decedent's release of liability is enforceable and operates as a complete bar to the wrongful death lawsuit. The court's tentative ruling on the motion was to grant in part and deny in part (regarding the gross negligence cause of action). After hearing oral argument, the court reversed its tentative ruling and issued a final decision granting Greg and Steve's motion for summary judgment in its entirety.
Gregory K. Lee
Page 7 of 9
Events
Holland Achieves Unanimous Defense Verdict for Assisted-Living Facility after Five-Day Jury Trial
Andrew Holland (Of Counsel-Houston) obtained a unanimous defense verdict in Ulster County, New York, Supreme Court for an assisted-living facility after a five-day jury trial. The firm’s client operates an adult care facility with a memory care unit that must be secured to prevent the residents from leaving. The plaintiff’s decedent, a long-time resident, had advanced Alzheimer’s disease but was physically capable and ambulatory. The resident was seated in a chair that had caster wheels on the front feet to assist with mobility, but after he stood up, he fell, and the chair rolled backwards, according to the incident report, and he sustained a hip fracture requiring nail fixation surgery. After his hospitalization for the surgery, the resident was transferred into skilled nursing care, confined to a wheelchair and died six months later. The plaintiff called a Registered Nurse as her liability expert, who claimed that these chairs are dangerous because residents with Alzheimer’s and dementia forget that the wheels are there, creating a safety hazard. We called a mechanical engineer who performed a forensic analysis of an exemplar chair with wheels, as well as one without wheels, and found the slide characteristics and rotational balancing points to be virtually the same. We also called a physician board-certified in internal medicine and specializing in geriatric medicine, who testified that not only are these chairs acceptable under the standard of care, but the wheels are actually a safety feature insofar as they allow residents to move chairs independently while diminishing the risk of the user tipping over or sliding out from the chair. He believed it was more likely that the resident lost his balance or felt lightheaded after rising and fell backward, pushing the chair back. Lastly, we emphasized the fact that not a single witness put forth any evidence that a fall had ever occurred because a chair with mobility-assistance wheels rolled out, as the plaintiff theorized. The jury reached a unanimous defense verdict within 25 minutes of commencing deliberations.
Andrew S. Holland
Lowry & Richardson Obtain Summary Judgment in Malicious Prosecution Case
Michael Lowry (Partner-Las Vegas) and Chris Richardson (Of Counsel-Las Vegas) obtained summary judgment in the Eighth Judicial District Court, Las Vegas, in a malicious prosecution case against Wilson Elser’s client, a security services provider contracted to work in a hospital. The plaintiff is a hospital nurse whom our client’s employees observed interacting with a patient they believed the nurse physically abused. The employees reported their observations to superiors resulting in a police investigation, a grand jury hearing, and criminal charges against the nurse. The charges were dismissed, however, due to an error in the grand jury hearing, and the plaintiff sued our client and its employees for malicious prosecution and other related causes of action.
After significant discovery, Michael and Chris moved for summary judgment, arguing that the malicious prosecution cause of action failed as a matter of law because the dismissal of criminal charges didn’t prevent the state from re-filing them. The court concurred that dismissal with prejudice is required to support malicious prosecution. It also concluded that the security personnel had probable cause to report their observations, a defense defeating a malicious prosecution claim.
The court further agreed that our client’s security personnel are immune from suit and qualify for statutory immunity under NRS 200.5096. The statute creates mandatory and permissive reporting obligations for certain persons and immunizes them from civil liability arising from their reporting. This ruling is thought to be among the first where the statute has been applied to security personnel working in a hospital. The plaintiff later voluntarily dismissed his case in lieu of an appeal.
Michael Lowry and Chris J. Richardson
Del Gatto, Dodrill and Vance Secure Summary Judgment on No Duty of Care
Brian Del Gatto (Partner-Phoenix), Colt Dodrill (Of Counsel-Phoenix) and Jenna Vance (Associate-Phoenix) obtained summary judgment in Maricopa County Superior Court for Wilson Elser’s clients, a peer-to-peer car sharing program and a shared vehicle’s owner. The plaintiff sought damages from our clients under the theory of negligent entrustment. Colt and Jenna established that of the co-defendants mother and daughter, only the mother was authorized to operate the shared vehicle, whereas her daughter who was operating it at the time of the accident, was not authorized to do so. The plaintiff argued that the mother’s prior return of a shared vehicle with a “weed smell” imposed on our clients a duty to remove her from client’s program and the breach of that duty caused the accident. Colt and Jenna successfully argued no causal link existed between the mother’s purported marijuana use and the daughter’s accident. Finding no duty of care owed to the plaintiff, the court entered summary judgment in favor of the peer-to-peer car-sharing program. Finding no proximate cause, the court entered summary judgment in favor of the shared vehicle’s owner.
Brian Del Gatto and Colt B. Dodrill
Francoeur and Young Obtain Dismissal of Claim against Insurance Broker
Joseph Francoeur (Partner-New York, NY) and Melissa Young (Associate-New York, NY) achieved dismissal of all claims asserted against their client, an insurance broker agency, upon submission of a pre-answer cross-motion to dismiss based on documentary evidence. In the underlying slip-and-fall case, the plaintiff was named as a third-party defendant for allegedly failing to remove snow and ice from a walkway, and submitted the claim to its carrier, which denied coverage because the policy did not cover the plaintiff’s snow and ice removal business. To establish a claim for negligence or breach of contract against an insurance broker, a plaintiff must show that a specific request was made to the broker for the coverage that was not provided in the policy. Plaintiff’s further argued that it reasonably believed its snow and ice removal operation was covered because our client had issued a Certificate of Insurance. New York courts have held that it is unreasonable to rely on an insurance certificate where such certificate contains disclaimer language that the certificate was “issued as a matter of information only and confers no rights upon the certificate holder.” The court agreed with Melissa and Joe’s arguments that the plaintiff never requested coverage for the snow and ice removal business, as evidenced by the application; that the plaintiff failed to allege a special relationship with the broker; and that the conspicuous disclaimer at the top of the insurance certificate negated any reasonable reliance by the plaintiff on the contents of such certificate with respect to coverage.
Joseph L. Francoeur and Melissa Young
Lowry & Pattillo Obtain Summary Judgment for UOA
Michael Lowry (Partner-Las Vegas) and Jonathan Pattillo (Associate-Las Vegas) obtained summary judgment in the Eighth Judicial District Court, Las Vegas, for Wilson Elser's client, a unit owners association for a residential building near the Las Vegas Strip. The plaintiff alleges he sustained injuries after exposure to mold in the building. However, the plaintiff never responded to requests for admission regarding key elements of his claim. As a result, the requests were deemed admitted. The court agreed with Michael and Jonathan's assertion that the plaintiff's responses were inadequate and failed to address the substance of the requests and that summary judgment was proper.
Michael Lowry and Jonathan C. Pattillo
Lowry and Pattillo Obtain Summary Judgment Due to Lack of Expert Testimony
Michael Lowry (Partner-Las Vegas) and Jonathan Pattillo (Associate-Las Vegas) obtained summary judgment in Nevada’s federal court for a regional grocer client. The plaintiff alleged he was injured after slipping and falling in one of the client’s Las Vegas stores. As a rule, Nevada requires medical expert testimony to satisfy the causation element in a negligence claim. An “obvious injury” exception exists, but did not apply to the injuries alleged. The district court concluded that the plaintiff had not met his obligation under FRCP 26(a)(2) to disclose medical expert testimony regarding medical causation and granted summary judgment.
Michael Lowry and Jonathan C. Pattillo
Lowry & Lee Secure Summary Judgment in Key West
Michael Lowry (Partner-Las Vegas) and Christopher Lee (Associate-Miami) obtained summary judgment from the Circuit Court, Monroe County, FL, in a personal injury claim against Wilson Elser's client, an integrated facilities maintenance provider. The plaintiff, an employee of our client, was injured while working at the direction of the resort. The plaintiff received workers' compensation benefits but proceeded to sue our client and the resort. Regarding our client's liability, the plaintiff argued that an intentional tort exception applied to worker's compensation immunity in this case. The district court disagreed, concluding that the evidence presented by the plaintiff failed to demonstrate an intentional tort. The plaintiff later agreed to dismiss the case in lieu of an appeal after four years of litigation.
Michael Lowry and Christopher W. Lee
Lowry and McLeod Win Dismissal for Landlord
Michael Lowry (Partner-Las Vegas) and Alexandra McLeod (Of Counsel-Las Vegas) had their motion to dismiss granted in the Eighth Judicial District Court, Las Vegas, in a landlord/tenant dispute against Wilson Elser’s client, an apartment complex. The plaintiff is a tenant alleging harassment by the landlord in an effort to avoid eviction. The district court granted Michael and Alex’s motion to dismiss based on the pleadings. With motions to dismiss based on the pleadings rarely granted, the court noted that no eviction had yet occurred, nor was the plaintiff harmed or damaged yet. Further, another local court has exclusive jurisdiction over eviction proceedings.
Michael Lowry and Alexandra B. McLeod
Bashor, Severino and Buono Obtain Dismissal of Case Involving Misrepresentation of Nature of Legal Advice
Las Vegas partners Karen Bashor and Mark Severino and associate Taylor Buono obtained dismissal of a lawsuit brought one year after a pre-suit settlement was agreed and a release had been signed in a motor vehicle accident matter. Immediately after suit was filed, Karen, Mark and Taylor filed a motion to dismiss, or alternatively, a motion for summary judgment, asserting the release was binding and not void. The plaintiff opposed the motion contending the release was void under a new Nevada statute allowing a plaintiff to void a release signed within 30 days of an incident and without the advice of counsel. However, while plaintiff admitted she “consulted” with a law firm, she claimed she only spoke to a case manager rather than an attorney and never actually retained the law firm. Karen, Mark and Taylor argued that the statute did not require retention of counsel, and that plaintiff admitted she received legal advice at the time of signing the release. In the alternative, they argued that if plaintiff did not receive legal advice, she should be estopped from voiding the release because she intentionally misrepresented to the client that she had sought legal advice, which she used to negotiate a higher settlement. The Eighth Judicial District Court for Clark County agreed, finding that plaintiff received legal advice and/or that she misrepresented that she received legal advice to the client in order to induce a higher settlement. Therefore, the release remained enforceable and plaintiff's suit was dismissed.
Karen L. Bashor and Mark C. Severino
Lowry Files Amicus Brief for Las Vegas Defense Lawyers Regarding Observers at Rule 35 Examinations
Michael Lowry (Partner-Las Vegas) filed an amicus brief on behalf of the Las Vegas Defense Lawyers regarding Nevada’s 2019 changes to its Rules of Civil Procedure that, for the first time, allowed observers at Rule 35 examinations. This change spawns disputes about who may or may not be the observer, which in turn delays the examinations and frequently delays the case. Michael Lowry and the Las Vegas Defense Lawyers learned of a writ petition pending with the Supreme Court of Nevada on this point. The plaintiff, armed with an amicus brief from the local plaintiffs’ bar, argued for an expansive definition of an “observer.” Michael prepared and filed the brief for Las Vegas Defense Lawyers, noting how these expansive definitions would hinder a defendant’s ability to obtain an examination and that they are inconsistent with Rule 35’s language.
Michael Lowry
Lowry and Brown Secure Voluntary Dismissal in Construction Site Motor Vehicle Accident
Michael Lowry (Partner-Las Vegas) and Kevin Brown (Of Counsel-Las Vegas) represented a concrete-cutting and excavation subcontractor concerning a motor vehicle accident that occurred in an active construction zone. Two vehicles collided after one or both failed to follow roadway signage. A lawsuit was filed in the Eighth Judicial District Court, Las Vegas that included the client, who happened to be in the work zone that night. Michael and Kevin worked with the client to identify its minimal job file and scope of work, and then were able to use targeted discovery to gather documentation from other defendants that confirmed the client had no role or responsibility for traffic control. Plaintiffs agreed to voluntarily dismiss while a motion for summary judgment was pending.
Michael Lowry and Kevin A. Brown
Lowry and Brown Secure Motion for Summary Judgment in Auto Accident Case
Michael Lowry (Partner-Las Vegas) and Kevin Brown (Of Counsel-Las Vegas) were retained to defend a driver who was involved in a side-swipe motor vehicle accident. During discovery, a witness and both drivers were deposed. All gave testimony indicating that our client had maintained his lane and the collision occurred only because the other driver had improperly merged lanes. Based on that testimony, the Eighth Judicial District Court, Las Vegas ruled there was no genuine issue of material fact as to who caused the accident. Our client won summary judgment and the adverse parties agreed to waive an appeal in exchange for a waiver of costs.
Michael Lowry and Kevin A. Brown
Lowry & Pattillo Help Property Owner Prevail in Title Dispute
Michael Lowry (Partner-Las Vegas) and Jonathan Pattillo (Associate-Las Vegas) achieved summary judgment in the Las Vegas Eighth Judicial District Court on behalf of a Homeowners Association (HOA) in a mixed-use tower. The HOA sued a ground-level commercial tenant in a dispute involving ownership and possession of a particular space. The tenant then counterclaimed against the HOA and Michael and Jonathan were retained to defend against the counterclaim. At the end of discovery, the district court granted summary judgment to the HOA, concluding the tenant lacked the facts required to prove any of its counterclaims. The tenant then agreed to dismiss the counterclaim with prejudice rather than pursue an appeal.
Michael Lowry and Jonathan C. Pattillo
Lowry & Richardson Win Summary Judgment for Equipment Rental Client
A Las Vegas district court granted summary judgment to a client that rents traffic control devices after the plaintiffs failed to correctly add the client to the case. Michael Lowry (Partner-Las Vegas) and Chris Richardson (Of Counsel-Las Vegas) were hired to defend the client, who rented devices to a festival that were allegedly involved in an accident. The plaintiffs sued numerous other parties who could have been responsible but initially did not sue the client. As discovery commenced, the other parties disclosed documentation expressly identifying the client and its role with the devices at issue. However, the plaintiffs did not try to add the client as a party for months, long after the statute of limitations expired. The only way for the plaintiffs to get around the statute of limitations was if their amended complaint "related back" to the original, timely complaint utilizing one of two alternative methods. The judge granted the motion because the plaintiffs failed to satisfy either option.
Michael Lowry and Chris J. Richardson
Hattar and Martin Obtain Dismissal in Bronx County of Personal Injury Action for Failure to Prosecute
Jacqueline Hattar (Partner-White Plains) and Tyler Martin (Associate-White Plains) obtained full dismissal of a personal injury action on behalf of two Bronx homeowners in the New York State Supreme Court, Bronx County. The plaintiff claimed that he tripped and fell down an exterior staircase due to a defective condition at the residential building owned by the firm’s clients. The plaintiff alleged that the defendants violated several New York City Fire Code, Administrative Code and Building Code provisions. He claimed various injuries, including facial fractures, rib fractures, and neck and back injuries. During the course of the litigation, the plaintiff’s counsel verbally advised that the plaintiff had passed away, but did not seek to substitute an executor or administrator as a representative on behalf of the plaintiff’s estate. Jackie and Tyler served a written demand on the plaintiff’s counsel to resume prosecution within 90 days of the receipt of the demand. Thereafter, they moved to dismiss the plaintiff’s complaint for failure to prosecute pursuant to New York Civil Practice Law and Rules Section 3126. The court granted their motion, dismissing the action in its entirety.
Jacqueline Hattar and Tyler J. Martin
$20,000 Verdict against $1.8 Million Demand in Parachute Save in Toxic Tort Case
Stu Miller (Partner-White Plains) appeared as trial counsel in a matter pending in Volusia County Circuit Court, Florida. Within just two weeks of parachuting in, Stu and colleague Camille Blanton (Of Counsel-Miami), joined by the underlying firm, secured a $20,000 verdict against a $1.8 million demand, with liability having been conceded by the client, a chemical tanker company. The client was delivering chlorine bleach to a pool company and accidentally pumped it into an acid tank during a rainstorm, causing a hydrochloride acid plume. The plaintiff, who was in the surrounding area, was transported to a hospital via ambulance in pulmonary distress and later claimed permanent chronic lung defects.
Stuart A. Miller
Lowry's Rapid-Response Avoids Larger Claim
Michael Lowry (Partner-Las Vegas, NV) helped a paving and aggregate company avoid costly litigation in Eighth Judicial District Court. A man trespassed into an opening mining area during the night and fell to his death. Though federal and state investigators found no violations that caused or contributed to the fall, a the man’s family pursued a claim against the company. Michael was able to help the company gather information about the fall and the circumstances leading up to the fall. Through investigation, it was learned that the decedent had a history of mental illness that had led to a police call earlier that night. Michael and the company decided engaging with the family's lawyer to help them understand what happened would be better in the long term than simply denying the claim. The family appreciated it and eventually resolved by establishing a fund for the decedent's minor child, saving the family and company years of litigation and expenses.
Michael Lowry
Lowry & Richardson Achieve Nuisance Settlement for National Private Security Contractor
Michael Lowry (Partner-Las Vegas, NV) and Chris Richardson (Of Counsel-Las Vegas, NV) achieved a favorable settlement before the Eighth Judicial District Court on behalf of a national private security contractor providing services for a hospital. . During an intake, a patient became violent, injured her mother and assaulted a nurse. The mother sued, alleging the security contractor should have better protected her from her daughter. Michael and Chris collaborated with the hospital to identify video obtained through the discovery process that recorded the event showing the mother trying to intervene when the daughter injured her. The mother's case then collapsed and she accepted a nuisance settlement.
Michael Lowry and Chris J. Richardson
Jury Defense Verdict against $12 Million Demand in Premises Security Incident
Peter Hughes (Partner-San Diego | San Francisco) and Kammann Cole (Associate-San Diego) obtained a jury defense verdict on behalf of an insured bar owner in San Diego Superior Court after a three-week trial. The plaintiffs attempted to enter the insured’s restaurant/bar on St. Patrick's Day in 2019 after having been expelled from the bar next door. The plaintiffs were intoxicated and spit on the bar’s security guards, who were not properly licensed at the time of the incident, and an altercation ensued. One of the plaintiffs suffered a fractured leg and another alleged a traumatic brain injury. The plaintiffs' counsel demanded $12 million in compensation and punitive damages. Peter and Kammann were able to secure a favorable defense verdict on behalf of the firm’s client.
Kammann S. Cole
Lowry & Richardson's Discovery Strategies Net Nuisance Settlement for National Private Security Contractor
Michael Lowry (Partner-Las Vegas, NV) and Chris Richardson (Of Counsel-Las Vegas, NV) achieved a favorable settlement on behalf of a national private security contractor before the Eighth Judicial District Court. The client was one of several security contractors hired to work at a large, outdoor festival in Las Vegas, Nevada, where two people were injured. The plaintiffs sued all of the security companies because they were unable to identify the correct one. Michael and Chris used the security contractor’s own documents to pursue targeted discovery from other vendors involved with the festival, which eventually confirmed that the client was not even assigned to the area of the festival where the injuries occurred. The plaintiffs accepted a nuisance settlement in lieu of a motion for summary judgment.
Michael Lowry and Chris J. Richardson
Lowry and Pattillo Achieve Favorable Settlement for Las Vegas Resort
Michael Lowry (Partner-Las Vegas, NV) and Jonathan Pattillo (Associate-Las Vegas, NV) obtained a favorable settlement in the Eighth Judicial District Court on behalf of a resort on the Las Vegas strip. The general liability case involved a plaintiff who was on the premises working for a florist at a wedding. A separate vendor installed a chuppah, which collapsed on the plaintiff, who then alleged a mild traumatic brain injury and sought nearly $60,000 in medical bills and loss of income. During discovery Michael and Jonathan obtained post-event emails from the plaintiff's employer that documented the resort had no involvement with the chuppah and that the employer had expressed concerns to the vendor about the chuppah's integrity. After these facts were confirmed via the employers' depositions, the resort moved for summary judgment and the plaintiff accepted a de minimis settlement before the motion could be heard.
Michael Lowry and Jonathan C. Pattillo
Bashor and Dodrill Achieve Summary Judgment for Client in Staged Accident Case
Karen L. Bashor (Partner-Las Vegas, NV) and Colt Dodrill (Of Counsel-Las Vegas, NV) obtained summary judgment in favor a petroleum transportation company in Clark County District Court. The plaintiffs alleged the client's tractor-trailer negligently rear-ended their vehicle, causing significant bodily injuries and totaling the vehicle. Suspecting this was a staged accident, Karen and Colt propounded extensive discovery, including requests to admit the accident was staged. Their investigation revealed that a witness had been a defendant in a separate action filed by the same plaintiffs' counsel regarding a similar accident that occurred just a half hour before. That witness's deposition testimony confirmed the first accident was staged by the same individuals in the same vehicles involved in the client's accident. Shortly thereafter, the plaintiffs' counsel withdrew, and Karen and Colt moved for summary judgment based on the witness's testimony, accident photographs, the client's statement and the plaintiffs' failure to respond to discovery. The plaintiffs elected not to oppose the motion, which the court granted, finding that by staging the accident, the plaintiffs consented to and assumed the risk of injury as a matter of law.
Karen L. Bashor and Colt B. Dodrill
Bashor and Dodrill Achieve Summary Judgment for Client in Staged Accident Case
Karen L. Bashor (Partner-Las Vegas, NV) and Colt Dodrill (Of Counsel-Las Vegas, NV) obtained summary judgment in favor a petroleum transportation company in Clark County District Court. The plaintiffs alleged the client’s tractor-trailer negligently rear-ended their vehicle, causing significant bodily injuries and totaling the vehicle. Suspecting this was a staged accident, Karen and Colt propounded extensive discovery, including requests to admit the accident was staged. Their investigation revealed that a witness had been a defendant in a separate action filed by the same plaintiffs’ counsel regarding a similar accident that occurred just a half hour before. That witness’s deposition testimony confirmed the first accident was staged by the same individuals in the same vehicles involved in the client’s accident. Shortly thereafter, the plaintiffs’ counsel withdrew, and Karen and Colt moved for summary judgment based on the witness’s testimony, accident photographs, the client’s statement and the plaintiffs’ failure to respond to discovery. The plaintiffs elected not to oppose the motion, which the court granted, finding that by staging the accident, the plaintiffs consented to and assumed the risk of injury as a matter of law.
Karen L. Bashor and Colt B. Dodrill
Yvars and Koehler Obtain Summary Judgment for Self-Storage Company in Chop Shop Fire Case
Christopher Yvars (Partner-Denver, CO) and Kim Koehler (Partner-Denver, CO) defended a national self-storage company in Denver County District Court in a case brought by one of its renters. The plaintiff sued the client for approximately $100,000 in alleged property damage, plus attorney’s fees and costs. She alleged that another renter was running an illegal chop shop out of his storage unit, which resulted in a fire that spread to and damaged other units, including the plaintiff’s. The plaintiff pled a single claim of gross negligence against the client in an attempt to plead around the waiver in her rental agreement, which clearly prohibits any simple negligence claims. Through discovery, Chris and Kim found that the plaintiff’s damages valuation was substantially inflated, and that she had discarded important evidence. They were ultimately successful in moving to dismiss plaintiff’s gross negligence claim against the client. Subsequent to the order of dismissal, the plaintiff filed a motion to bring new claims against the storage facility under Colorado's Premises Liability Act, and breach of contract and negligence theories. The court agreed with Chris and Kim’s opposition and denied the plaintiff’s motion, noting that allowing her counsel to essentially restart the case based on claims that could have been but were not asserted in the original complaint would undermine the purpose and spirit of the rules.
Christopher D. Yvars and Kim L. Koehler
Hattar, Flannery & Tommer Obtain Summary Judgment in Labor Law/Construction Accident Action in Kings County
Jacqueline Hattar (Partner-White Plains, NY), John M. Flannery (Partner-White Plains, NY) and Karen Tommer (Of Counsel-White Plains, NY) obtained summary judgment on behalf of a Brooklyn property owner, dismissing the plaintiff’s complaint in a labor law/construction accident case in the New York State Supreme Court, Kings County. The plaintiff mechanic was installing electrical cables on the ground outside of the firm’s client’s warehouse when a wire dislodged from a cable box and struck him in the left eye, resulting in a severe laceration to the cornea that required surgical repair and loss of vision. The Plaintiff asserted New York Labor Law Sections 200, 240(1) and 241(6), and common law negligence claims against the firm’s client. After discovery was completed, Jackie, John and Karen moved for summary judgment, seeking dismissal of all claims, arguing the client did not direct, control or supervise any of the electrical work that the plaintiff was performing at the time of the accident. Additionally, they argued the New York State Industrial Code provisions, which plaintiff alleged in his Bill of Particulars, did not apply since he was not engaged in “construction, excavation or demolition” work at the time of the alleged accident and that the firm’s client did not have any prior notice of any dangerous condition. The court agreed with the arguments and dismissed the complaint. The plaintiff’s settlement demand was $1.25 million while the motion was pending.
John M. Flannery, Jacqueline Hattar and Karen Tommer
Lowry and Pattillo Obtain Favorable Settlement for Mass Transit Provider
Michael Lowry (Partner-Las Vegas, NV) and Jonathan Pattillo (Associate-Las Vegas, NV) obtained a favorable settlement on behalf of a mass transit provider in the Las Vegas Eighth Judicial District Court for a case where a passenger alleged he was injured in a rear-end collision. The passenger claimed the accident re-aggravated a healing break in his left arm and resulted in medical bills exceeding $100,000. He testified the injury happened because he braced for the rear-end collision with his left arm, causing him severe pain at the scene. Michael and Jonathan used the bus’s onboard surveillance video to demonstrate that the man never braced with his left arm. He was also walking and talking amicably after the rear-end collision occurred. The plaintiff also gave medical testimony that contradicted his own medical records. Michael and Jonathan obtained a settlement for the firm’s client of less than $5,000.
Michael Lowry and Jonathan C. Pattillo
Lowry Obtains Dismissal for Sports Bar in Food Poisoning Case
Michael Lowry (Partner-Las Vegas, NV) obtained a dismissal in the Eighth Judicial District Court on behalf of a national sports bar restaurant with a flagship store on the Las Vegas Strip. Two customers alleged they were served drinks spiked with illicit drugs, causing both of them to become impaired, with one asserting he had been hospitalized as a result. The customers filed suit, but did not complete in a timely manner the process to open the discovery period. Michael moved to dismiss, noting the long delay, and the district court dismissed the case over the customers' objection.
Michael Lowry
Yvars Obtains Summary Judgment for Army & Navy Surplus Store
Christopher D. Yvars (Partner, Denver, CO) obtained summary judgment in a slip-and-fall case for the lessee and property owner of an Army & Navy Surplus Store in Arapahoe County District Court, Colorado. The plaintiff was walking to her car when she slipped on some ice and fell in the alley separating the clients’ store and their parking lot. Chris established as a matter of law that the clients had no ownership of the alley and owed no legal duty to maintain the area under Colorado’s Premises Liability Act or common law. The court agreed and granted dismissal of the case in its entirety. Chris obtained full resolution of the case before any depositions were taken and without the need for expert discovery.
Christopher D. Yvars
Yvars and Koehler Obtain Summary Judgment for International Hotel Brand in $1.5 Million Premises Liability Lawsuit
Christopher D. Yvars (Partner-Denver, CO) and Kim L. Koehler (Partner-Denver, CO) were granted their motion for summary judgment and dismissal of a premises liability case in Denver District Court on behalf of an international brand hotel in downtown Denver, Colorado. The plaintiff, a guest at the hotel for multiple nights, alleged an unreasonably slippery bathroom floor caused him to fall forward and strike his head on the granite counter and door, causing a large facial laceration, traumatic brain injury, permanent neurologic and vision issues, and scarring. He sued the hotel under Colorado's Premises Liability Act, demanding $1.5 million. In obtaining a judgment on the merits of the case, Chris and Kim argued that an ordinary, common, tile bathroom floor is not a “danger” contemplated by the Premises Liability Act and that their client was entitled to judgment as a matter of law. The court granted their motion for summary judgment and dismissed the plaintiff's lawsuit.
Christopher D. Yvars and Kim L. Koehler
Yvars Obtains Jury Defense Verdict in Premises Liability Case
Christopher Yvars (Partner, Denver, CO) obtained a full jury defense verdict in a premises liability case on behalf of a major national bookstore client in Larimer County, Colorado, District Court. The plaintiff suffered significant injuries when he tripped and fell on a display stand at the client’s bookstore. The plaintiff, who is in his 70s, claimed the display created a dangerous condition and sued the client under Colorado’s Premises Liability Act. The plaintiff claimed the store had notice of the danger, as several management-level employees testified they had witnessed similar incidents over the years, and that the store disposed of the video of the incident, implying there was a cover-up. The plaintiff had over $300,000 in billed medical costs, a claim for noneconomic damages, and an uncapped claim for permanent impairment and disfigurement. His demand at trial was in excess of $1.3 million. Liability and the reasonableness of the plaintiff’s medical bills were disputed, though the nature of the plaintiff’s injury and need for surgeries were not. The jury agreed with Chris on his primary defense: the display was not a dangerous condition, and the client did not act unreasonably. As a result, the jury did not even need to address the affirmative defense that the plaintiff’s fall and injuries and damages were a result of his own comparative fault. The client is entitled to and is pursuing recovery of fees and costs, pursuant to Colorado’s Offer of Settlement statute, after the plaintiff rejected the client’s $1 statutory offer thereunder.
Christopher D. Yvars
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Events
Yvars Prevails in Trip-and-Fall Jury Trial for National Retail Clothing Store
Christopher Yvars (Partner-Denver, CO) won a defense verdict in a jury trial in Denver District Court for a national retail clothing store. While shopping at the factory outlet store, the plaintiff tripped and fell on a stanchion chain that was part of the checkout queue. The fall resulted in a broken arm at her elbow, which required medical transport and surgical intervention. The plaintiff, relying in part on expert testimony, claimed the condition, as designed and constructed, fell below the standard of care for retail store customer safety; that store knew or should have known it was a tripping hazard; and that the store breached its duty of care owed to her under Colorado’s Premises Liability Act. Chris successfully argued that plaintiff’s claim lacked merit, establishing that the stanchion was not a danger and, through effective cross of plaintiff’s expert, demonstrating the lack of any applicable industry standard. After deliberating for less than an hour, the jury agreed in full, and ultimately did not even need to consider Chris’s additional defenses of plaintiff’s comparative fault and assumption of risk. A complete victory for the defense.
Christopher D. Yvars
Lowry and Pattillo Granted Summary Judgment for Department Store Client in Civil Rights, Defamation Case
Las Vegas partner Michael Lowry and associate Jonathan Pattillo were granted summary judgment for the firm’s department store retail chain client in United States District Court, District of Nevada. The plaintiff alleged that the store had cooperated with police and other stores in an investigation of an organized retail theft group, which violated his civil rights under color of state law per 42 USC 1983, defamed him by identifying him as being involved in the crime and resulted in his false imprisonment. The charges stemming from the investigation were dropped when the plaintiff noted he was incarcerated for unrelated convictions when the retail thefts occurred. Michael and Jonathan argued that someone who is already incarcerated cannot be falsely imprisoned by someone else and that there were no strong indicators of a conspiracy present. In granting summary judgment to the firm’s client, the judge also concluded there is a limited privilege to defame for people reporting crimes and cooperating with police. The limits of that privilege were not breached here.
Michael Lowry and Jonathan C. Pattillo
Lowry and Pattillo Obtain Summary Judgment in Slip and Fall Case for Retail Client
Las Vegas partner Michael Lowry and associate Jonathan Pattillo obtained summary judgment for a national big box retailer on a slip and fall claim, filed in United States District Court, District of Nevada. Plaintiff, a customer of the store, alleged she fell due to wet conditions on the retail floor. Michael and Jonathan argued the plaintiff’s claims conflicted even with the testimony of her own husband as to whether there was any wet substance present. Even assuming there was something wet on the floor though, the federal judge granted summary judgment for the firm’s client because the customer lacked evidence indicating the store had actual or constructive notice it was there.
Michael Lowry and Jonathan C. Pattillo
Lowry and Rowan Find Eyewitness to ER Incident, Win MSJ
Michael Lowry (Partner-Las Vegas, NV) and Douglas Rowan (Of Counsel-Las Vegas, NV) won summary judgment at the Eighth Judicial District Court after claimants’ counsel withdrew because a pivotal eyewitness was found. A woman who presented at a Las Vegas area emergency room was acting erratically, was dissatisfied with the staff, and decided to leave. While the on-site security contractor was walking the woman out, she smeared her blood on his uniform. She then hired a lawyer, claiming that the security officer had beat up her and her adult son, who was with her. While there was no video of what happened, Michael and Doug pursued various hospital witnesses and found a highly credible independent witness who had been sitting in the emergency room and saw what happened. The witness's testimony supported the security contractor and the claimants' lawyer then withdrew. Plaintiffs shopped the claim to at least one other lawyer, who declined the case based in part on the witness's testimony. The court later granted summary judgment because the now pro se plaintiffs did not disclose any medical experts to prove their case.
Michael Lowry
Lowry Secures Summary Judgment in Double Fatality Case
Michael Lowry (Partner-Las Vegas) was hired by an American restaurant and entertainment business concerning an incident where a customer was served, continued drinking at an unrelated bar and later drove his car. Within two miles, he struck a car stopped at a red light, killing two people in the car.
The decedents’ families filed a wrongful death claim against the restaurant, the bar and the driver. They argued NRS 41.1395, the Nevada statute that specifically places responsibility on the person who drank not the person who served them, is unconstitutional. Michael moved to dismiss the entire complaint, and the Eighth Judicial District Court agreed, stating that NRS 41.1395 is constitutional. The court created a narrow exception, concluding NRS 41.1395 would not protect someone who assisted the driver to his car. Michael then subpoenaed the police investigation, which proved the person who assisted the driver to his car was an employee of the bar, not the restaurant. Michael then moved for summary judgment and the court granted it.
Michael Lowry
Yvars Obtains Summary Judgment in Wrongful Death / Premises Liability Case
Chris Yvars (Partner-Denver) obtained summary judgment in a wrongful death explosion case before the District Court, Arapahoe County, Colorado. The plaintiff is the young daughter and heir of the decedent, who was killed in a violent explosion that occurred while he was using an acetylene torch to cut a piece of scrap metal while working at our client’s recycling facility as an employee of a torching subcontractor. Excessive heat from the decedent's torch caused compressed air in one of the components to rapidly expand and explode the surrounding metal, killing him instantly. The plaintiff collected workers' compensation death benefits from the subcontractor's insurer and, through her legal guardian, then sued our client for wrongful death based in negligence and under Colorado's Premises Liability Act. After significant argument and motions practice, the court agreed with Chris that our client qualified as a "statutory employer" at the time of the incident, and as such, it was entitled to liability immunity under Colorado's Workers' Compensation Statute and interpreting case law. In a lengthy and well-reasoned opinion, the court granted summary judgment in our client’s favor, dismissing all claims with prejudice.
Christopher D. Yvars
Yvars and Andrzejczak Obtain Summary Judgment in Case Involving Road Rage
Christopher Yvars (Partner-Denver) and Sarah Andrzejczak (Associate-Denver) secured summary judgment in a case involving a motor vehicle accident. Our client contractor and its employee were sued by a cab driver based on allegations that the employee crossed into the cab driver’s lane and hit his vehicle, causing him significant permanent injuries, along with substantial economic and non-economic damages, and an uncapped amount for permanent impairment. The plaintiff never wavered from his policy limits demand. Chris and Sarah developed compelling evidence showing that the plaintiff caused the accident when he swerved and hit the employee's truck in a fit of road rage. Upon close of discovery, the Denver District Court granted them summary judgment based on their argument and demonstration that the plaintiff could not establish causation or his claimed damages as a matter of law. The plaintiff recovered nothing, and the carrier is considering pursuing the plaintiff for costs.
Christopher D. Yvars
Yvars and Koehler Obtain Defense Verdict in Premises Liability Case
Chris Yvars (Partner-Denver, CO) and Kim Koehler (Partner-Denver, CO) defended a self-storage company in a premises liability case brought by a renter at one of the client’s facilities. The plaintiff alleged that she stuck her arm through the gap between the facility’s gate and a stone pillar to comply with an employee’s identification request. She testified that she did not have time to remove her arm when another renter triggered the gate to open from his car, crushing her arm and resulting in traumatic injury and permanent impairment. The plaintiff also alleged that surgeries prevented her from working for a lengthy period. Through diligent investigation, discovery and an aggressive trial approach, we convinced the jury the plaintiff’s injuries and surgeries all were not causally related to the alleged incident, and that her damages were inflated. Most importantly, we convinced the jury that the plaintiff bore the large majority of fault, thereby barring her from any recovery pursuant to Colorado’s comparative fault statute. The jury decided in our favor and costs were awarded to the defense as well.
Christopher D. Yvars and Kim L. Koehler
Bashor and Severino Resolve Premises Liability Matter for Nominal Offer
Karen L. Bashor (Partner-Las Vegas) and Mark C. Severino (Of Counsel-Las Vegas) settled a premises liability case in Clark County District Court on behalf of a Las Vegas restaurant for slightly more than 1 percent of the plaintiff's last demand. The plaintiff tripped and fell down a small flight of concrete stairs while exiting the client restaurant, resulting in severe fractures of her ankle/lower leg in four places. The fractures required three separate surgical repairs and the use of a bone growth stimulator to heal. The plaintiff alleged negligence with respect to the lighting conditions, claimed negligent design of the staircase and argued notice with other incidences. Using a grainy, low-quality surveillance video and still images pulled from it, Karen and Mark were able to show that the plaintiff turned her head and looked right immediately before tripping and falling. With the use of the video and still images, Mark got the plaintiff to admit during her deposition that she was not watching where she was walking, which was dangerous and could have caused her to fall. The plaintiff subsequently accepted a nominal offer of judgment to resolve the case before dispositive motions were filed.
Karen L. Bashor and Mark C. Severino
Bashor & Smith Obtain Defense Verdict in Las Vegas Restaurant Case
Karen L. Bashor (Partner-Las Vegas) and Rebecca A. Smith (Associate-Las Vegas) defended a Las Vegas restaurant where a patron alleged that she slipped on a liquid substance on the floor and suffered injuries. The plaintiff sued for premises liability negligence and negligent hiring, training and supervision. Rebecca deposed the plaintiff and elicited additional evidence to support the defense, including an earlier incident on the same day where the plaintiff witnessed the restaurant respond promptly to another spill. As the lead attorney for the arbitration hearing, Rebecca capitalized on the plaintiff’s own testimony in support of the defense, highlighted plaintiff’s lack of credibility for the self-serving testimony as to the subject incident and used the evidence of independent witnesses to support the defense. The arbitrator found no liability whatsoever and as a result did not award plaintiff any damages.
Karen L. Bashor
Lowry Successfully Defends Summary Judgment before Ninth Circuit
Michael Lowry (Partner-Las Vegas) defended a casual steakhouse with locations across the country from a slip-and-fall lawsuit in Las Vegas. The guest alleged the restaurant negligently maintained its floor, causing her injuries. The local federal court granted summary judgment, and the plaintiff appealed. The Ninth Circuit affirmed the decision, agreeing with Michael that the guest "failed to raise a genuine dispute of material fact as to whether the restaurant caused the foreign substance to be on the floor or whether it had actual or constructive notice of a hazardous condition and failed to remedy it.”
Michael Lowry
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