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Results

  • Airport Fall Not Fault of Terminal's Cleaning Service

    We were successful in having a case dismissed on summary judgment in Brooklyn, New York. The plaintiff was a ticket agent for an international airline at LaGuardia airport. Our client was the cleaning service for the airport terminal. The plaintiff claimed she tripped and fell over a “worn/torn defective” floor mat behind the ticket counter. Depositions of the defendant indicated that they did not own, control, maintain or supervise the mats behind the airlines’ ticket counter. Summary judgment was filed in 2020. After two lengthy oral arguments in February 2022, the court granted the defendant’s motion for summary judgment, dismissing the action.

  • Defense Verdict in Auto Liability Arbitration in Philadelphia

    The arbitration panel found in favor of the defendant in a motor vehicle accident case where the plaintiff was driving a dump truck and claimed he was side-swiped by a tractor-trailer. The plaintiff filed suit against the driver of the tractor-trailer and his employer, both of whom were represented by Marshall Dennehey. It was the defendants’ position that the plaintiff was not side-swiped, but that the plaintiff actually rear-ended the tractor-trailer because he was going too fast to stop as the tractor-trailer moved from the right lane into the left lane. At the arbitration, plaintiff’s counsel attempted to introduce photographs that were not produced in discovery and were only shown by the plaintiff to his attorney the morning of the arbitration. Plaintiff’s counsel also attempted to enter into evidence the police report. We were successful in getting both items of evidence precluded. The key piece of evidence was that the plaintiff admitted, both in his written responses to discovery and during his testimony, that he first noticed the defendant’s vehicle merging into his lane when the defendant’s vehicle was 30-40 feet ahead of him.

  • After Nine-Week Trial, Unanimous Defense Verdict in Asbestos Case Where $40 Million in Damages Had Been Sought

    We obtained a unanimous defense verdict after a nine-week trial in Suffolk County, New York, where the plaintiff’s counsel requested that the jury award $40 million in damages. The plaintiff was 51 years old when she was diagnosed with peritoneal mesothelioma, allegedly as a result of being exposed to asbestos-containing joint compound manufactured and sold by our client. The plaintiff, who was 56 at the time of trial, testified that she had little or no knowledge of ever being exposed to asbestos. However, her older sister, who served as the only product identification witness at trial, testified that she recalled that their father used asbestos-containing joint compound on two occasions, approximately 50 years ago, when he repaired their home after a fire in 1970 and when he built a home in Florida around 1975. The plaintiff was five years old during the alleged exposures, and her sister was seven years older. The plaintiff’s sister testified that she had a vivid memory of her father using six different joint compounds during the two projects, including our client’s product. She also testified that the plaintiff was present hundreds of times when their father mixed, applied and sanded the joint compound. At trial, we called an industrial hygienist, a toxicologist and an epidemiologist, who testified that the type of asbestos fiber used in our client’s joint compound did not cause or contribute to her mesothelioma because the fibers are too short and do not cause disease. Our epidemiologist testified that the plaintiff’s mesothelioma developed spontaneously and was not the result of asbestos exposure. We also called a construction expert, who testified that the sister’s testimony regarding the amount of joint compound used and the time the sister was exposed were excessive. The jury deliberated an hour before returning the verdict. Post-trial comments from jurors indicated they did not find the sister to be credible.

  • Defense Obtains a Minority View Win in a Personal Injury/Dram Shop Action in the Connecticut Superior Court

    After suffering severe brain damage in a motor vehicle accident, the plaintiff brought claims of negligence and recklessness against our restaurant client and other various defendants, including the owners and operator of the offending vehicle, who was charged with multiple criminal offenses (still pending) for operating under the influence. On behalf of our client, cross-claims were asserted for contribution and indemnification. The co-defendants first requested revision of the cross-claims, which were complied with, and then moved to strike the cross-claims as not recognized under Connecticut law. We argued, on behalf of the restaurant and sole proprietor owner, that there was a minority view of Superior Court cases of more recent vintage than that cited by the co-defendants’ counsel which supported such cross-claims. We submitted that the rationale behind these cases includes the plain language interpretation that Connecticut General Statutes Sec. 52-572h(c) does not prohibit a defendant from acquiring an apportionment evaluation of another (already named) party’s negligence. We argued this is particularly so under the circumstances of a criminally charged co-defendant operating under the influence as the final conduct in the negligence timeline. The Stamford Superior Court agreed that prohibiting the cross-claims would be absurd, irrational and nonsensical. 

  • Defense Prevails in Jury Trial on Underinsured Motorist Claim

    We prevailed in a jury trial on a UM claim in Hillsborough County’s 13th Judicial Circuit. The plaintiff claimed he suffered permanent and debilitating injuries in a rear-end collision in Tampa, Florida. Liability was admitted, but the extent of the plaintiff’s injuries was in dispute. The plaintiff asked the jury to award him $500,000 for past and future damages.  The jury found there was no permanent injury and awarded $25,000 for past medical expenses only.

  • Mattress Retailer Sleeps Soundly After Winning Summary Judgment

    Despite dueling expert affidavits, Marshall Dennehey attorneys won summary judgment in a premises matter in the Connecticut Superior Court Middlesex Judicial District. The plaintiff claimed negligence against our client, a mattress retailer, for a hazardous and defective condition in the store. The defect alleged was a tile-carpet transition claimed to be approximately one-half of an inch in differential, as well as a “slope” in the continuing carpet that created a friction co-efficient that caused the plaintiff to fall. We submitted an affidavit from the store owner (whom the plaintiff waived deposing), an affidavit from an engineering expert, photographs from the site inspection, and a detailed memorandum of law outlining Connecticut law on constructive and actual notice. Our engineering expert had researched the history of the premises at the Town Clerk for the time prior to our client’s occupation (eight months leading up to the incident) and observed there were no claims, complaints or code infractions relative to the alleged condition. In other words, our client inherited the premises as is and, although responsible for the floor per the terms of the lease, had no reason or cause to repair anything or to take any corrective action. Our client’s affidavit attested that both he and his customers traversed over the “defect” countless times without feeling, observing, noticing or detecting anything foreseeably dangerous. Moreover, we asserted that because the plaintiff’s expert failed to bring up any mention of a government regulation, code, industry standard or custom that was deviated from with respect to the carpet-tile transition and premises, the expert’s affidavit was tantamount to no affidavit at all. The court granted our summary judgment motion and dismissed the case.

  • Appellate Success in Wrongful Death Product Liability Action

    Our attorneys succeeded in obtaining an affirmance in the Fifth District Court of Appeal of a final dismissal order of a wrongful death product liability action. The decedent’s estate filed the lawsuit two years after the statute of limitations expired. The estate argued the statute was tolled for a variety of reasons. The trial court dismissed the case, with prejudice, after giving the Estate five attempts to amend. The Fifth District affirmed the dismissal and dispensed with oral argument that same day. 

  • Defense Shaves $85K Demand to $4K Jury Verdict in Personal Injury Case

    The plaintiff claimed she sustained serious head and neck injuries following a two-car motor vehicle accident. At trial, we demonstrated that the plaintiff’s alleged injuries were largely related to pre-accident and degenerative medical conditions. The defense also highlighted the fact this was the plaintiff’s third personal injury lawsuit in a 15-year span. On the day of trial, the plaintiffs reduced their demand from $85,000 to $75,000. At the conclusion of trial, the jury returned a verdict of only $4,000.

  • Defense Smokes Pipefitter’s Claims

    The plaintiff, a pipefitter employed on a construction site, claimed he tripped and fell over a 2’ x 4’ metal stud, causing him to sustain a shoulder injury and subsequent surgery. The plaintiff sued the owner and general contractor under the New York State Labor Law. At his deposition in 2018, the plaintiff produced a photograph showing a loose metal stud lying on the floor of the construction site. When questioned as to who took the photograph, he stated his friend a co-worker, took the photo but that he was not there when it was taken. Four days later, the defense visited the friend and showed him the photograph produced. The friend denied ever taking the photograph and showed the defense the one photograph that he did take of the plaintiff merely sitting on a bench after the incident.  During trial, the plaintiff again produced the photograph (which was entered into evidence) and testified that it was taken by his friend and co-worker, Brian. The plaintiff also testified that he was not wearing sunglasses at the time of his fall, despite an email from a co-worker to his employer who witnessed the incident stating that he was. The email also stated that the plaintiff tripped and fell while trying to squeeze between two vertical metal studs while wearing a work backpack and carrying two energy drinks.  When the plaintiff rested his case, we called the eyewitness to the stand, who testified that the plaintiff tripped and fell trying to fit through two vertical studs while wearing a backpack and sunglasses. He further testified that the plaintiff tripped over a fixed plate on the floor, not a loose stud. The defense then called the plaintiff's friend and co-worker to the stand, who testified that he did not take the photograph produced by the plaintiff, nor did he give the photograph to the plaintiff. The jury rendered a defense verdict.  

  • Denial of Nationwide and Pennsylvania-Wide Class Certification Affirmed

    Our attorneys prevailed on an appeal to the Third Circuit, which affirmed the district court’s rejection of the plaintiffs’ request for class certification in a product liability and warranty action. The named plaintiffs are several property owners and communities of common ownership who allege they have yellow-jacketed, corrugated stainless steel tubing (CSST) transporting natural gas through their structures. The flexible, yellow CSST is the modern heir to the black iron pipe formerly universal in the building industry. The flexible CSST offers advantages, including ease of installation, but the plaintiffs asserted there are latent product defects that risk failure in the event an electrical surge makes its way to the tubing, either from an in-house event or nearby lightning strike. The district court denied the plaintiffs’ request for nationwide and Pennsylvania-wide class certification of their disparate claims because of a failure of record proof on the elements of ascertainability of a sufficiently numerous class, predominance of typical and common claims, and an inability to demonstrate proof of liability and damages issues on a class-wide basis. The Third Circuit granted the plaintiffs’ request for interlocutory review of the class certification decision, but nevertheless affirmed the district court’s ruling on largely the same bases. Without passing on the merits of the product defect claims, the Third Circuit recognized that there was no basis to grant class-wide treatment given the differences in everything from notification to putative class members, liability and damages proofs, and the law governing claims. The denial of class certification was affirmed, and the case will proceed on an individual basis only.

  • Dismissal of Claims Against Day Care Center

    We obtained dismissal via preliminary objections of all claims asserted against a day care center in a shooting case venued in Philadelphia. The case arose from the shooting death of a student’s father. The shooter had been previously convicted of manslaughter and assault and was an employee of the day care center’s long-time food service vendor. While the decedent was dropping off his youngest child at day care, he got into an argument with the shooter, who was on the premises delivering food. The decedent subsequently drove away with his 17-year-old son in the passenger seat, and the shooter followed in his work van. A few blocks away from the day care center, the shooter pulled up alongside the decedent’s vehicle and repeatedly fired a handgun at the decedent. The decedent’s son survived the shooting. The food service vendor, its affiliated entities, the day care center and the shooter were named as defendants. The claims against the day care center included negligence per se, negligent hiring, negligent supervision, negligent undertaking to render services, negligent infliction of emotional distress, violations of the Unfair Trade Practices & Consumer Protection Law (UTPCPL), negligent misrepresentation, and negligent infliction of emotional distress as to the decedent’s seventeen-year-old son who witnessed the shooting. The plaintiffs’ negligence per se claims centered on alleged violations of the Child Protective Services Law (CPSL), the Public Welfare Law (PWL) and the Pennsylvania School Code (School Code). Among other things, the plaintiffs took the position that the day care center had a duty to ensure that its service vendor’s employees did not have criminal records because those employees foreseeably came into contact with children and parents. On behalf of the day care center, we filed preliminary objections seeking dismissal of all claims asserted against it. After briefing, the Philadelphia Court of Common Pleas granted our preliminary objections. The case subsequently resolved with no contribution whatsoever from our client.

  • Dismissals of Multiple New York No-Fault/PIP Arbitrations

    The arbitrations were commenced by medical providers against the respondent-carrier for non-payment of medical bills insofar as the policyholder and the claimant engaged in material misrepresentation in the procurement of the policy, and in the presentation of the claim. We submitted a defense brief that included numerous exhibits, including examination under oath transcripts, an affidavit from the respondent-carrier’s underwriting department and screenshots of insurance premium payments from the claimant to the policyholder. At the hearings, the defense argued that the respondent-carrier owed no duty of coverage insofar as the policyholder and the claimant engaged in material misrepresentation in the procurement of the policy and in the presentation of the claim. Specifically, the policyholder fraudulently obtained an insurance policy with the respondent-carrier on behalf of the claimant. The misrepresentation was deemed “material” insofar as the respondent-carrier would have charged a higher premium based on the actual garaging location of the insured vehicle and, moreover, would not have otherwise insured the claimant. The arbitrator held that the respondent-carrier established, by a preponderance of credible evidence, that the instant loss involved fraud and misrepresentation in the procurement of the insurance policy; the policyholders’ misrepresentation with regard to the ownership, operation and garaging of the insured vehicle was material; the respondent-carrier would not have issued the policy if the facts had been disclosed by the policyholders, and that the respondent-carrier was justified in denying the claim.

  • Summary Judgment for Car Dealership

    Our attorneys successfully obtained summary judgment on behalf of a car dealership. The dealership rented a vehicle to the co-defendant, who was having his personal vehicle serviced at the dealership. The co-defendant was involved in an auto accident with the plaintiff while operating the dealership’s rental. The plaintiff was operating a motorcycle, and significant damages were alleged. The defense team filed a motion for summary judgment pursuant to the Graves Amendment, which states that an owner of a motor vehicle, who rents a vehicle to a person, shall not be vicariously liable for harm to persons or property that arises out of the use or operation of that vehicle during the period of the rental, so long as certain additional criteria is met. The court agreed with our arguments raised in the motion and dismissed our client with prejudice.

  • Voluntary Dismissal of Client in Asbestos Mesothelioma Case

    Our attorneys secured a voluntary dismissal on behalf of an aircraft parts supplier in an asbestos mesothelioma case. The plaintiff alleged he was diagnosed with mesothelioma as a result of exposure to numerous asbestos products while doing home renovation work with his father in the 1940s; while in the U.S. Air Force working as an aircraft mechanic between 1953 to 1957; as a self-employed painter between 1958 and 1960; and as a civilian aircraft maintenance crew chief at the Willow Grove Air Force Base between 1959 to 1968. The plaintiff contended our client was the exclusive supplier of asbestos-containing fire sleeves for military aircraft hose assemblies that he worked with almost on a daily basis while at Willow Grove. Based upon the plaintiff’s description of the product during his trial video and discovery depositions, our client took the position that the product could not have been supplied by them. All other defendants either settled or were dismissed, and our client took a no-pay position. As the case neared trial, plaintiff’s counsel presented evidence as to why the product identified by the plaintiff was accurate and, therefore, why the case should be settled. Through a combination of the plaintiff’s testimony, our witness’s prior testimony, select portions of catalog pages and drawings from the aircraft the plaintiff worked on, and catalog pages from our client’s catalogs, plaintiff’s counsel was persuaded to voluntarily dismiss our client shortly before trial was to begin. 

  • Marshall Dennehey Successfully Represents Client in Multi-Million Dollar Chemical Spill Case

    In a lawsuit seeking $279 million in alleged property damages, Marshall Dennehey attorneys successfully defended their client, a subcontractor of a railroad repair shop, against any and all liability.  The case involved the August 2016 rupture of a railroad tank car containing 178,000 lbs. of liquefied chlorine at the plaintiff’s chlorine manufacturing plant in West Virginia. The tank car had recently been returned to the plaintiff after undergoing extensive repairs in the spring of 2016. The chemical producer-plaintiff filed suit against three parties as a result of the chlorine release: its fleet maintenance manager, the railcar repair shop that performed the 2016 repairs to the tank car and our client, a subcontractor of the railroad repair shop involved in the aspect of the repairs which the plaintiff claimed were performed negligently.  At the time of the 2016 repairs, the tank car was 37 years old and had several characteristics associated with it that were known in the railroad industry to cause cracks in the tank’s shell. It was undisputed at trial that there was a small, pre-existing crack in the tank shell prior to the 2016 repairs at issue, and that, but-for this pre-existing crack, the tank car would not have ruptured in August of 2016, which was the first time the tank car was loaded with chlorine since the repairs were completed. Allegations of comparative negligence were asserted by all of the defendants against the plaintiff for its decision to repair, rather than scrap, the tank car in 2016.  During trial, the plaintiff asserted it was entitled to $278 million in replacement-value property damage associated with alleged damage to its equipment at its 500-acre chlorine manufacturing plant. The plaintiff requested, and the trial judge granted, a jury instruction providing that the jury could award replacement value damages. The nearly six-week trial encompassed over 30 witnesses and 10 expert witnesses. After deliberations, the jury awarded only $12.8 million in damages, assessing the railcar repair shop with 40% of liability, the plaintiff’s fleet maintenance manager with 20% of liability, and the plaintiff itself with the remaining 40% of liability. No liability was assessed to our client.   

  • Defense Sends Personal Injury Lawsuit Down Amusement Park’s Lazy River

    Our attorneys obtained summary judgment relief on behalf of an amusements park in a lawsuit for alleged personal injury sustained at the park’s lazy river attraction. The plaintiff and his family were business invitees at our client’s amusement and water park. The plaintiff alleged he sustained injury when he attempted to board an inner tube on the lazy river attraction, which was staffed by certified lifeguards. The plaintiff claimed that the lifeguards negligently failed to assist and/or help him get onto the inner tube and were further negligent for failing to observe him while he attempted to do so. As a result of the lifeguards’ alleged negligence, the plaintiff claimed his inner tube flipped backwards, resulting in his head striking the floor of the shallow watercourse.   During depositions, the plaintiff and his wife conceded that the extent of the lifeguards' assistance to visitors of the attraction was gathering vacant inner tubes and pushing them towards people waiting in line. Moreover, the plaintiff testified he made one initial unsuccessful attempt to climb on an inner tube before ultimately "over engineering it" on his second attempt, which caused the inner tube to flip backwards. The court agreed that under the "no-duty" rule, the lifeguards did not owe the plaintiff a duty because the alleged risks associated with climbing onto an inner tube in the lazy river attraction were common, inherent, expected or frequent risks associated with the activity. Furthermore, the plaintiff was unable to satisfy an exception to the no duty rule because he could not prove the employees deviated from an established custom or duty. The trial court's decision granting summary judgment and dismissing the plaintiff's claims, with prejudice, was ultimately affirmed on appeal to the Pennsylvania Superior Court.  

  • Confirmation for obtaining the grant of summary judgement in a premises liability case.

    Our defense team successfully obtained an affirmance of the grant of summary judgment in a premises liability case. The plaintiff asserted he tripped and fell in our client’s supermarket and that the fall exacerbated his epilepsy. The discovery period ended without the plaintiff producing an expert opinion that causally connected the medical complaints to the fall. The plaintiff claimed that his treatment for cancer caused his inability to be timely examined and to obtain an expert opinion. After the trial court denied the plaintiff’s motion to extend discovery, we moved for summary judgment on the grounds the plaintiff was required to provide an expert opinion linking his fall to his allegedly worsened epilepsy. The plaintiff filed a cross-motion for additional time. At the hearing on the motions, the judge expressed a willingness to consider further extension if the plaintiff had presented some indication that the report would be produced. But in the absence of such an indication, the judge found that fairness to the defense required that summary judgment be granted. On reconsideration, the plaintiff presented a “preliminary summary” from his doctor, which relied on the plaintiff’s wife’s statements to link the epilepsy to the plaintiff’s fall. The trial court denied reconsideration. On appeal to the Appellate Division, the court found no error in the decision of the Law Division judge. The court found that the plaintiff failed to show exceptional circumstances to justify a further extension of discovery and discounted the “preliminary summary” submitted on reconsideration as an improper attempt to expand the record and re-argue the motion.

  • Directed Verdict in Property Damage Case

    We obtained a directed verdict following a six-day jury trial in York County, Pennsylvania under COVID-19 restrictions. In this property damage case, the plaintiff claimed that his house was flooded when his local property manager and water company failed to coordinate the turn-on of water service while he was residing in Colorado. Brooks represented the water company at trial and demonstrated that the plaintiff failed to prove that the water company owed any additional duties of care to him, or that any breach of those duties was a factual cause of the harm which occurred—namely, flooding of the house for seven days. A directed verdict was granted in favor of the water company at the end of trial. The plaintiff passed on a joint offer of $100,000 in the days leading up to trial. The property manager secured a defense verdict just hours after the water company’s directed verdict. The judge, jury, staff, and all counsel wore masks and socially distanced during trial. Testifying witnesses were asked by the court to remove their masks in order to testify, with the witness stand encapsulated in Plexiglass. All but one witness consented.

  • Six-Figure Claim Against Lighting Designer Dismissed

    We obtained dismissal of a six-figure claim in Philadelphia County via preliminary objections. The plaintiff homeowner sued a lighting designer for breach of contract, negligence for $23k in remediation costs, statutory remedies for treble damages and legal fees. The plaintiff alleged the lighting designer was a home improvement contractor who violated the Home Improvement Consumer Protection Act (HICPA) and Unfair Trade Practices and Consumer Protection Law. The plaintiff omitted pertinent facts from the complaint. Using judicial notice, we presented facts from public records to show that the design services were performed in the construction of a new home. We argued that HICPA does not apply to new construction and that the gist of the action doctrine barred the contract claim. The court agreed, dismissed the statutory and contract claims, and remanded the $23k negligence claim to Common Pleas Court arbitration.

  • Claims Dismissed in Marine Construction NY Labor Law Case

    Our team successfully obtained summary judgment dismissing all claims against our client in a marine construction NY Labor Law case pending in Supreme Court Rockland County. The case involved bodily injuries sustained to an employee of our client, which was a sub-subcontractor at the site of the new Mario Cuomo Bridge. The property owner, general contractor and the subcontractor each cross-claimed and/or third-partied our client into the case. They sought contractual and common law indemnity and contribution pursuant to the terms and conditions of the various contracts. We argued, and the court agreed, that since there was no finding of negligence against our client causing the injuries sustained by the plaintiff, the indemnification clauses were not implicated. The court found that there was no evidence demonstrating that our client caused in whole or in part the injuries the plaintiff sustained.

  • Summary Judgment for Daycare Center in Wrongful Death Case.

    We prevailed on a motion for summary judgment related to the duty owed to a minor business invitee in an alleged wrongful death. The plaintiff, the personal representative of the estate of a minor, filed a wrongful death claim alleging the defendant daycare center breached its duty to exercise the reasonable care owed to the minor while he was under the care and supervision of the center. The plaintiff alleged the defendant center’s employees failed to render aid when the minor collapsed, including failing to train its employees, and failing to notify emergency personnel in a timely manner. We successfully argued that the defendant did not breach its duty to exercise reasonable medical care as its employees were CPR certified and immediately responded when an employee witnessed the incident. The mother of the minor arrived immediately after the collapse and held onto him until EMS arrived. The call to the EMS team was made within three minutes of the collapse and the employees reassessed the minor while he was in the mother’s arms and determined the minor was breathing. The minor was breathing until EMS arrived. Sadly, the minor passed away of natural causes. After reviewing the defendant’s motion for summary judgment and hearing our argument, the judge granted the motion for summary judgment, and the case was dismissed.

  • Unanimous Defense Verdict in Premises Liability Civil Jury Trial Under COVID Restrictions

    We obtained a unanimous defense verdict in a civil jury trial in Northampton County, Pa. under COVID restrictions. In this premises liability case, the plaintiff claimed he had slipped on snow and ice on a sidewalk and suffered a comminuted tri-malleolar fracture, requiring two surgeries. At trial, Jason demonstrated that the plaintiff failed to establish that the accident occurred on the property his client maintained as power-of-attorney, or that his client breached any limited duty owed to a licensee. The socially-distanced jury returned its verdict in favor of the defense in one hour.

  • Social Host Act Does Not Apply to Gross Negligence Claims.

    Carolyn Bogart was successful in opposing a plaintiff’s appeal against our client, a former fraternity member and social guest. In 2014, the plaintiff was a 20-year-old college student and fraternity member attending a university in New Jersey. After consuming his own alcohol, he fell asleep in a dorm room that was the location of an on-campus party. In the early morning hours, he left the dorm room and proceeded to drive his vehicle, which was unknown to anyone in attendance, as all of the party attendees had either left the party or were asleep when he left. He injured himself in a one-car accident, resulting in a traumatic brain injury and disfigurement claim. In 2016, he filed a lawsuit naming all party attendees and fellow brothers in his fraternity, as well as the university and its employees. Following over 30 depositions, summary judgment was granted to all defendants. The appeal was filed in 2019, and a reported decision issued on March 25, 2021, affirming the underlying Superior Court decision as to our client. The appeal raised questions concerning the scope of the duty owed to an adult not old enough to drink legally, but who nonetheless drank to excess. The appellate panel ruled that the Social Host Liability Act did not apply because it governs liability for third party injuries resulting from the service of alcohol to an of-age adult.

  • Defense Clips Product Liability Lawsuit on Behalf of Nail Salon Owner

    The defense prevailed on summary judgment for a nail salon owner against negligence and product liability claims by a plaintiff who slipped and fell off-site while still wearing pedicure slippers. The plaintiff had received a pedicure at our client’s nail salon. When she left the premises, she continued to wear the disposable pedicure slippers. The plaintiff then walked in the rain and eventually slipped and fell upon entering a retail store. The plaintiff brought general negligence and product liability claims against the nail salon’s owner. At the conclusion of discovery, the court granted our motion for summary judgment based upon the plaintiff’s admission that there was nothing wrong with the slippers and her failure to provide expert opinion as to the existence of any defect in the slippers.

  • Dismissal of PIP Arbitration Matter

    We successfully argued and obtained a full dismissal of an arbitration matter filed against a major insurance company. ​The plaintiff filed it, claiming the insurer owed payment for unpaid medical bills. He alleged the injuries arose from a motor vehicle accident on February 28, 2017, and sought payment for medical treatments provided to him in the amount of $92,043.28. His position was that the entire amount was owed as our client had not reimbursed the medical provider for the services/surgery rendered. The defense countered that the treatment rendered was not medically necessary and presented documentation from an independent medical peer review of the plaintiff’s medical claims record to support that position. The arbitrator heard arguments, concluded that our argument was persuasive, and found in full favor of our client.

  • Dismissal of PIP Litigation Brought by Medical Provider

    We successfully secured dismissal of a New York no-fault/PIP arbitration commenced by a medical provider against a major insurance carrier for non-payment of medical bills. At the hearing, the carrier argued that the provider was ineligible for reimbursement of the disputed charges because it was not licensed in New York State with the Department of Education and the Department of State when the services at issue were rendered. Under the New York no-fault/PIP regulations, a provider of health care services is not eligible for reimbursement under the insurance law if it fails to meet any applicable state or local licensing requirements. In support of the threshold defense, we submitted copies of printouts from these Departments as conclusive evidence that the provider was not properly licensed in New York State when the services were rendered and was therefore ineligible for New York no-fault reimbursement.

  • Injury at Fracking Site Not Fault of Defendant

    We obtained a summary judgment on behalf of a worker who was injured at a fracking site. The injury occurred when a hose came off of an above-ground storage tank and struck him in the head, resulting in sustained serious and permanent injuries. The plaintiff claimed the general contractor was liable for his injuries because it actively participated on the work site and controlled the unsafe condition which caused the injuries. We moved for summary judgment, arguing that the general contractor relinquished complete control over the site to a sub-contractor and, thus, had no control over any unsafe condition which caused the plaintiff’s injuries. The trial court agreed and granted summary judgment in favor of our client.

  • Successful Appeal of Negligent Security Action

    We obtained an affirmance by the First District Court of Appeal of a defense verdict in a negligent security action. A chef was taking garbage outside of a restaurant when he was shot and killed. The estate sued our client, the owner of the commercial building and parking lot, as well as the defendants involved in the development, design and maintenance of the retail center. The jury returned a defense verdict in favor of all defendants. The estate then appealed, arguing the trial court abused its discretion in excluding subsequent remedial measure evidence of the installation of lighting, signs and cameras in the parking lot after the shooting. The First District rejected those arguments, and affirmed the final judgments in favor of the defendants.

  • Summary Judgment for National Concert Promoter

    We obtained summary judgment for a national concert promoter and public entity venue owner. The plaintiff purchased outdoor lawn seats for a concert at the PNC Bank Arts Center in Holmdel, New Jersey. After the show started, it began to rain, and the plaintiff alleged the lawn area became slippery, wet and muddy. The plaintiff attempted to walk down the sloped lawn toward the stage to buy her husband a beer. While doing so, her foot got stuck in mud which formed with the rain, and she suffered a severe ankle fracture that was surgically repaired. The trial judge dismissed the case on summary judgment and found the plaintiff’s expert’s report to be unsupported. The court reasoned the plaintiff could not present a claim of liability against the operator for failing to prevent the outdoor grassed seating area from becoming wet and slippery when it rained. He also reasoned the plaintiff could not prove the property was in a dangerous condition as defined by the New Jersey Tort Claims Act.

  • Successful defense of grant of summary judgment in the New Jersey Appellate Division results in published opinion

    Walter Klekotka (Mount Laurel, NJ) and Walter Kawalec (Mount Laurel, NJ) were successful in defending a grant of summary judgment in the New Jersey Appellate Division that resulted in a published opinion. Our clients were the owner and manager of an apartment complex for seniors. The plaintiff/resident had returned from walking her dog and alleged she received injuries entering the elevator. She had allowed the dog to enter first when the doors began to close. She alleged injuries occurred when the right door struck her arm and when she used her left arm and the left side of her body to slow the doors from closing while she leapt into the elevator. She sued our clients and the company hired to maintain the elevator, but she was unable to establish any proof of negligence. The trial judge dismissed the case, declining to apply the doctrine of res ipsa loquitur, in part, because the plaintiff could not establish the third element of the doctrine: that the injury did not result from the plaintiff’s own voluntary act or neglect. On appeal, the plaintiff argued that the Appellate Division should eliminate this third element. The Appellate Division, in a published opinion, concluded that the third element is a well-established law in New Jersey and only the New Jersey Supreme Court could eliminate it, and that court has shown no inclination to do so. Because the plaintiff could not demonstrate the third prong, res ipsa was not applicable, and the failure of the plaintiff to establish negligence resulted in summary judgment in the defendants’ favor.

Firm Highlights

Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

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WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.