Thought Leadership

Shane Haselbarth (Philadelphia) succeeded in obtaining summary judgment in a federal district court and an affirmance on appeal to the Third Circuit in a police shooting case resulting in a fatality. Dispatch relayed news of a 911 call for a stabbing, and two police officers approached the scene. Multiple bystanders informed them that the suspect had a gun, and the officers converged toward him. With the benefit of a body-mounted camera recording, the officers ordered the suspect to drop his gun. He did so, and the officers ordered him to step away from the gun, but the suspect inexplicably reached down and picked up the gun again. The officers held their fire and ordered him again to drop his gun—until the suspect raised his gun and aimed it in the direction of one officer and the suspect’s mother, whom the suspect had brutally stabbed (leading to the 911 call from the suspect’s terrorized sister). Since the suspect aimed his gun at his mother and/or the police officer, the officers used deadly force against him, and only did so when the suspect repeatedly raised his gun as though to shoot it.  The district court held that the police officers’ conduct violated no clearly established right under the Fourth Amendment despite the suspect’s death from gunshot wounds. On appeal, the Third Circuit went further and held that the police officers’ conduct did not violate any right at all under the Fourth Amendment. Their use of deadly force, while tragic, was wholly reasonable given the facts and circumstances which they encountered on the night in question. 

Carol VanderWoude (Philadelphia) succeeded in obtaining reversal of a trial court’s order overruling preliminary objections as to venue. The plaintiff filed suit in the Philadelphia County Court of Common Pleas alleging negligence for injuries sustained in a car accident. The accident occurred in Lebanon County between the plaintiff’s vehicle and a school bus driven by an employee of the defendant transportation company. The corporate defendant provided transportation services to school districts in Lebanon and Lancaster Counties, and had no clients in Philadelphia County. The trial court overruled the preliminary objections to venue, reasoning the act of transporting students into Philadelphia for approximately two-dozen field trips during the pertinent school-year satisfied the quality-quantity venue analysis. The Superior Court agreed with the arguments raised on appeal and held that the field trips simply aided in the corporate defendant’s main purpose of providing transportation services as directed by its clients located outside Philadelphia County and that those field trips were not conducted regularly enough to satisfy the quantity portion of the venue analysis.

Kimberly Berman (Fort Lauderdale) and Jonathan Kanov (Fort Lauderdale) succeeded in obtaining an affirmance by the Fourth District Court of Appeal of a final judgment entered in favor of Marshall Dennehey’s clients, a law firm and managing lawyer. The law firm and lawyer issued an opinion letter on behalf of his clients as part of a commercial loan transaction for $7.5 million. After the client defaulted on the loan, the plaintiffs, sophisticated lenders, sued 20 different named defendants involved in the transaction. They sued the law firm and lawyer for negligent misrepresentation and breach of fiduciary duty for its role in issuing the third-party opinion letter. The trial court granted summary judgment in the law firm and lawyer’s favor, finding in an arm’s length transaction, there was no duty owed to nonclients. The lender appealed, phrasing the issue as a pure legal question of an attorney’s professional responsibility: “When an attorney issues an opinion letter – (i) knowing that the letter is attendant to a transaction in which a non-client party to that transaction will necessarily rely on the letter (as a condition precedent to the transaction); and (ii) invites reliance on the letter without qualification—does that attorney owe any duty of care to the intended non-client recipient?” After oral argument, the Fourth District rejected the lender’s arguments attempting to extend a duty in these circumstances and affirmed the final judgment.

Kimberly Berman (Fort Lauderdale) and Dante Rohr (Orlando) succeeded in obtaining an affirmance by the Second District Court of Appeal of a final judgment on a cross-claim for defense and indemnity in a construction defect matter for Marshall Dennehey’s client, a window and door subcontractor. The plaintiffs were residential homeowners who sued the general contractor for construction defects following the construction of their luxury home. They also sued the window and door subcontractor for negligent misrepresentation in its recommendation to install windows and doors manufactured by a German manufacturer. The general contractor filed a cross claim against the window and door subcontractor and third-party claims against the other subcontractors involved in the construction for defense and indemnification. During litigation, the case was referred to nonbinding arbitration, where the arbitrator found that the general contractor was not negligent, but that it breached the contract and warranties. The arbitrator also found there was no negligent misrepresentation on behalf of the window and door subcontractor. The arbitrator awarded the plaintiffs $3.1 million in damages. The general contractor moved for trial de novo on the cross claim and third-party claims only, accepting the $3.1 million award entered against it. Thereafter, the window and door subcontractor moved for summary judgment on the cross claim, asserting there was no obligation to defend or indemnify based on the express terms of the indemnification clause in the subcontract. The court granted summary judgment in the window and door subcontractor’s favor. After oral argument, the Second District Court of Appeal affirmed the final judgment in the window and door subcontractor’s favor.

Patricia McDonagh (Roseland) succeeded in obtaining an affirmance by the Appellate Division of the Supreme Court of New York, First Department, of an order granting summary judgment to Marshall Dennehey’s client, a building owner. Plaintiffs brought suit against the building owner after allegedly sustaining injuries when ceiling tiles fell onto them. The First Department held that defendant established that it was an out-of-possession landlord with no course of conduct of making repairs after the tenant assumed possession and control of the premises. The court further held that plaintiffs failed to raise a triable issue of fact in opposition and improperly made arguments for the first time on appeal.

Walter Kawalec (Mt. Laurel) succeeded in obtaining an affirmance from the New Jersey Appellate Division of a directed verdict in a medical malpractice action. The plaintiff’s decedent was a patient in our client’s nursing home and suffered from dysphagia, or difficulty swallowing. As a result, he was on a mechanically soft diet along with moderate supervision by the nursing staff. Plaintiff’s nursing expert opined that this level of supervision required the nurse to be in the room or at least the doorway when the decedent ate. The decedent was fed an appropriate meal of eggs for his breakfast, but choked on the meal while the nurse was outside the room, and eventually died as a result. The Appellate Division agreed with our argument that because the plaintiff’s experts only established a breach of the standard of care, and the cause of death, but did not establish proximate causation between the breach and the decedent’s death, a directed verdict was warranted, and the case was properly dismissed.

*Results do not guarantee a similar result.