|
|
NEW JERSEY AND NEW YORK EXTEND STATUTE OF LIMITATIONS FOR SEXUAL ABUSE CLAIMS
|
|
The legislatures in both New York and New Jersey recently passed laws that significantly extend the statute of limitations related to sexual abuse cases. The Child Victims Act, which was signed by Governor Andrew Cuomo, extends the statute of limitations in New York for child sexual abuse claims from age 23 to 55 and includes a one-year “look back”, allowing all matters currently barred by the statute to be filed between August 15, 2019 and August 15, 2020.
Similarly, the New Jersey legislature passed a bill which is expected to be signed into law by Governor Murphy that significantly extends the statute of limitations for child sexual abuse claims to age 55 and 7 years from the date of alleged sexual abuse for claims involving adults. The New Jersey law will also have a two-year “look back” to begin shortly after the Governor signs the bill. What is perhaps most significant regarding the anticipated New Jersey law is that it will change what was previously an accentuated standard of negligence for charitable institutions to a general negligence standard. This change will be applicable both retroactively and prospectively.
|
|
Below is a detailed summary of the respective statutes in both New Jersey and New York.
|
|
|
HKMP DIRECTED VERDICT AND DISMISSAL IN LEGAL MALPRACTICE AFFIRMED BY THE NEW JERSEY APPELLATE DIVISION
|
HKMP Partner Patrick McCormick won an affirmance in the Appellate Division of a directed defense verdict in a legal malpractice case. Plaintiff alleged that the defendant law firm was negligent in how it handled an underlying estate litigation. Plaintiff was one of seven beneficiaries under her father’s will. Her brother served as executor and had admittedly secreted assets from the estate. After the probate litigation ended, plaintiff filed a malpractice action alleging the defendant law firm was not diligent in identifying additional assets taken by the executor. The defendants counterclaimed for their unpaid fees and expenses.
|
|
In the legal malpractice action, plaintiff relied on an expert report which opined that a jury could infer damages based on the executor’s bad conduct. At trial, the judge determined that the expert’s opinions were inadmissible net opinions and dismissed the malpractice case and entered judgment on the counterclaim.
In affirming the trial court’s dismissal of the malpractice case, the Appellate Division agreed that the plaintiff failed to establish a compensable loss due to the defendant’s conduct, that the expert’s opinions were inadmissible, and that without an expert, plaintiff’s allegations were speculative. The Appellate Division remanded to the trial court a narrow issue on whether the fees awarded on the counterclaim were reasonable under the Rules of Professional Conduct.
|
|
APPELLATE DIVISION ENFORCES WAIVER OF SUBROGATION CLAUSES
IN CONSTRUCTION CONTRACTS
|
|
On April 4, 2019, in the case of Ace American Insurance Co. v. American Medical Plumbing, Inc., A-5395-16T4, the Appellate Division, in an issue of first impression, enforced the waiver of the subrogation clause in AIA (American Institute of Architects) construction contracts.
While the Court followed the majority rule in reaching its conclusions, the Court also relied on the contract’s plain language and persuasive case law from other jurisdictions to establish that the waiver applied to claims involving damages to any property that was covered by insurance regardless of whether or not it was part of the construction project or the damage sustained was after the project was completed.
The ruling effectively bars subrogation in NJ litigation involving an AIA contract, giving credence to AIA’s consistent attempts to broaden the subrogation waiver language beyond project completion and include work beyond the scope of the project. It also precludes lawsuits among the contracting parties thus transferring the risk of construction-related losses to insurers.
|
|
HKMP WINS DISMISSAL OF NEGLIGENT SECURITY CLAIM
|
HKMP Senior Partner Mark Kundla and Associate Joseph DiPisa were recently successful in obtaining a dismissal on behalf of their clients the City of New York and a non-profit landlord operating a transitional shelter providing supportive housing for low income tenants. Plaintiff filed suit in the Supreme Court of New York, New York County, claiming personal and psychological injuries and demanding $750,000 for an assault that she alleged occurred as a result of inadequate security measures in a building owned and managed by HKMP’s clients. After aggressively defending the case before trial, HKMP won a dismissal on behalf of their clients when the Supreme Court ruled that satisfactory security measures were in place at the building as a matter of law.
|
|
HKMP'S GRANT OF SUMMARY JUDGMENT AFFIRMED ON APPEAL
|
Plaintiff insurance company filed a subrogation action for a property damage claim relating to a fire that occurred at the home of its insured. Janet Poletto and Robert Blanton of HKMP represented the defendant fuel oil company that provided fuel for the oil-fired furnace located in the home. Defendant also serviced the furnace several weeks prior to the fire in response to a no heat call. HKMP successfully barred plaintiff’s experts’ reports and testimony on the argument that the opinions were impermissible net opinions and obtained summary judgment dismissing the complaint for lack of expert evidence establishing defendant's liability. HKMP argued that plaintiff’s experts rendered net opinions that failed to articulate the cause of the fire. Plaintiff appealed.
|
|
|
|
HKMP OBTAINS SUMMARY JUDGMENT IN ASSAULT CASE
|
|
HKMP attorney Eric J. Koplowitz obtained summary judgment for the firm’s client, a not-for-profit company which provides a variety of services to developmentally disabled individuals, in an assault case venued in Suffolk County, New York. Plaintiff alleged serious injuries, including Reflex Sympathe-tic Dystrophy Syndrome, after he was assaulted without provocation by a Waldbaum, Inc. employee as he was entering the store. The client provided vocational support services to the assailant, including visiting him at Waldbaum, coaching him, and consulting with his supervisors. There was evidence that the client was aware the assailant had hit his mother, and had issues with anger and cursing. Notably, the client’s staff was not at the store on the incident date. Because Waldbaum, Inc. declared bankruptcy during the pendency of
|
|
the litigation, the client was the sole remaining deep pocket. Accordingly, the plaintiff attempted to hold the client liable for the assailant’s actions. HKMP argued the client lacked the necessary special relationship with the assailant that would give rise to a duty to prevent the assailant from causing harm to others. The court agreed with HKMP and held that the client, even if it possessed knowledge of the assailant's potential for antisocial or violent conduct, lacked the requisite control over the assailant so as to give rise to a duty to protect the plaintiff. The holding is favorable to the defense bar, and to those organizations which provide services to individuals with developmental disabilities, mental health problems, or simply a violent past.
|
|
|
|
HKMP OBTAINS SUMMARY JUDGMENT IN PREMISES LIABILITY CASE
|
|
HKMP attorney Eric J. Koplowitz obtained summary judgment for the firm’s client, a not-for-profit company which owned and operated a group home, in a trip-and-fall case venued in Dutchess County, New York. Plaintiff alleged serious injuries, including a wrist fracture and multiple surgeries, after she tripped and fell on the driveway of the group home. Plaintiff, an occupational therapist, fell as she was exiting the home after providing services to one of the residents. HKMP relied upon plaintiff’s own deposition testimony, as well as photographs exchanged by the plaintiff during discovery, to argue that she could not identify the cause of her fall without engaging in speculation. In short, plaintiff admitted she tripped on a cracked area of the driveway. However, she testified there was no height or depth differential on the driveway where the accident occurred. HKMP also argued that, even if the plaintiff could identify the cause of her fall, the alleged defect was trivial and not actionable. Lastly, HKMP argued that the client did not cause or create, or have actual or constructive notice of the alleged defect. In opposition, the plaintiff submitted the affidavit of an engineer who opined that the condition of the driveway constituted a tripping hazard, and had been in that condition for a lengthy period of time. The court agreed with HKMP and held that the plaintiff could not identify the cause of her fall. This case is an example of the important role that depositions play in litigation.
|
|
NEW JERSEY ASBESTOS NEWS
|
|
NEW JERSEY ASBESTOS VERDICTS
|
In a mesothelioma asbestos verdict against Union Carbide in January 2019, a Middlesex County (NJ) jury awarded the family of Charley Edenfield $2.38 million in compensatory damages. Widow Thomasina Fowler filed the action in 2011; however, it was not tried until 2018. The case was originally dismissed in 2015 at the trial court level on the grounds that there was insufficient evidence that decedent, age 74 at the time of passing , was exposed to asbestos manufactured and sold by Union Carbide. The matter was reinstated in 2017 by the Appellate Division, which found proof of thousands of pounds of asbestos shipments to the decedent’s employer together with his job duties as a compounder sufficient for the case to proceed to trial. The issue before the jury was, therefore, whether Union Carbide’s shipment of Calidria asbestos to decedent’s employer for four decades, together with decedent’s job duties albeit in a room where there was no testimony that asbestos was used, was sufficient proof. Despite the lack of a direct factual nexus between the decedent and the Union Carbide product, the jury found in favor of the plaintiff. The jury did not, however, award punitive damages against Union Carbide.
In March 2019, a Middlesex County jury granted a no cause to Johnson & Johnson in a talc asbestos case involving Johnson & Johnson baby powder.
|
|
NEW JERSEY SUPREME COURT TO CONSIDER WHETHER A MANUFACTURER HAS A DUTY TO WARN OF THE RISK OF HARM FROM EXPOSURE TO ASBESTOS REPLACEMENT PARTS
|
In Whalen v. Armstrong International, the New Jersey Supreme Court granted certification on the issue of whether an original equipment manufacturer has a duty to warn of the risk of harm from exposure to asbestos replacement parts manufactured and sold by others.
Plaintiff Whalen could not identify the manufacturers of replacement parts he used on boilers and automobiles. Instead, plaintiff identified original equipment manufacturers (OEMs) and argued that they were responsible for his asbestos exposure to the aftermarket replacements under a theory that the OEMs failed to warn of asbestos in the component parts that would need to be replaced to maintain the function of the original product. Defendants argued that the OEMs are not liable for aftermarket component parts manufactured by others and that the duty to warn does not extend to replacement parts that they did not manufacture or distribute. Summary judgment was granted at the trial court level; however, an appellate panel found the original equipment manufacturer’s duty to warn extended to any dangers created by replacement parts necessary for the original equipment to function.
|
|
673 Morris Avenue , Springfield, New Jersey 07081
|
110 William Street, New York, New York 10038
|
60 West Broad Street, Bethlehem, Pennsylvania 10018
|
|
|
973-912-5222
212-571-0111
610-433-8400
|
|
|
|
|
|
|
