Category Archives: Negligence

I Spy Claims Against Amazon

This entry was posted by Michael J. Ciamaichelo on December 11, 2023.

A federal court in West Virginia recently ruled that a negligence claim could proceed against Amazon related to a spy camera used to take unsolicited photos of a teenage girl. M.S. v. Amazon.com, Inc., No. 3:23-cv-0046, 2023 U.S. Dist. LEXIS 213236 (S.D. W. Va. Nov. 30, 2023). The negligence claim is specifically interesting for subrogation professionals as it potentially provides an additional avenue for recovery against Amazon in addition to a product liability claim.

In 2021, the plaintiff, M.S. (a minor), visited the United States as a foreign-exchange student. During her stay, she lived with Darrel Wells, a 55-year-old man. Mr. Wells purchased a spy camera that was disguised as a bathroom towel hook on Amazon. The camera was listed for sale by an unknown third party and satisfied through the “Fulfillment by Amazon” program. The product description showed the camera serving as a towel hook with the caption: “It won’t attract any attention[:] A very ordinary hook,” as shown in the photo below from the pleading.

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This entry was posted in Negligence, Products Liability, Subrogation, West Virginia and tagged Amazon-eBay, Internet Sales, Negligence, Products Liability, Subrogation, West Virginia.

In Pennsylvania, Contractors Can Be Liable to Third Parties for Obvious Defects in Completed Work

This entry was posted by Michael L. DeBona on June 13, 2023.

In Brown v. City of Oil City, No. 6 WAP 2022, 2023 Pa. LEXIS 681 (2023), the Supreme Court of Pennsylvania (Supreme Court) recently held that a contractor can be liable for dangerous conditions it creates even if the hazard is obvious or known by the property owner. In City of Oil City, the City of Oil City (Oil City) contracted with Harold Best and Struxures, LLC and Fred Burns, Inc. (collectively Contractors) to reconstruct the concrete stairs to the city library. Contractors completed their work at the end of 2011. In early 2012, Oil City received reports of issues with the stairs. Oil City notified Contractors that it considered the stairs dangerous and that Contractors’ defective workmanship created the condition. Neither Oil City or Contractors took any action to fix the stairs or warn of the danger and the stairs’ condition worsened with time. Continue reading →

This entry was posted in Construction, Negligence, Pennsylvania, Premises Liability and tagged Accepted Work, Negligence, Negligence – Duty, Pennsylvania.

Waiver of Subrogation and Lack of Contractual Privity Bars Commercial Tenants’ Claims

This entry was posted by Melissa Kenney on April 25, 2023.

In United States Automatic Sprinkler Corporation v. Erie Insurance Exchange, et al., No. 2SS-CT-264, 2023 Ind. LEXIS 105, the Supreme Court of Indiana (Supreme Court) reversed an order of the trial court that denied a motion for summary judgment filed by a sprinkler contractor. At issue was whether commercial tenants – one who contracted with the sprinkler contractor and others who did not – could recover for their respective property damages. The court held that under the contract’s subrogation waiver and agreement to insure, the contracting tenant waived its insurer’s rights to recover through subrogation. With respect to the non-contracting tenants, who sought to recover only property damages, the court held that the absence of contractual privity barred their recovery.

The case centered around a sprinkler system that malfunctioned and flooded the Sycamore Springs Office Complex (Landlord), causing extensive property damage to four commercial tenants. Surgery Center, one of the four tenants, requested permission from the Landlord to install a sprinkler system inside the building. Landlord agreed, in exchange for Surgery Center agreeing to be solely responsible for maintaining the sprinkler system. Surgery Center hired United States Automatic Sprinkler (Automatic Sprinkler) to both install and conduct periodic inspection and testing of the sprinkler system. The contract terms outlined the scope of work to be performed by Automatic Sprinkler and the work was limited to the inspection and testing of the sprinkler system. Although repairs and emergency services were excluded from the contract, each could be performed upon the request and authorization of Surgery Center for an additional cost. The contract also contained certain risk allocation provisions including a waiver of subrogation and an agreement to insure.

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This entry was posted in Duty, Duty, Indiana, Negligence, Privity, Subrogation, Waiver of Subrogation and tagged Independent Contractor, Indiana, Negligence – Duty, Privity, Subrogation, Waiver of Subrogation, Water Damage.

Up in Smoke: Insurer’s Circumstantial Evidence Did Not Establish Negligence

This entry was posted by Kyle Rice on April 21, 2023.

In Union Mut. Fire Ins. Co. v. Ace Caribbean Mkt., No. 21-2653,2023 U.S. App. LEXIS 8203 (2d Cir. Apr. 6, 2023), the United States Court of Appeals for the Second Circuit (Second Circuit) considered whether evidence that a fire may have originated in extension cords was sufficient to establish that: a) the owners/proprietors were negligent in their use of the extension cords; and b) their negligence was the cause of the fire. The Second Circuit held that the circumstantial evidence was not sufficient and affirmed summary judgment in favor of the defendant.

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This entry was posted in Negligence, New York and tagged Circumstantial Evidence, Negligence, New York, Res Ipsa.

Someone Who Hires an Independent Contractor May Still Be Liable, But Not in This Case

This entry was posted by Katherine Dempsey on March 31, 2023.

In Allstate Veh. & Prop. Ins. Co. v. Glitz Constr. Corp., 2023 N.Y. App. Div. LEXIS 1180, 2023 NY Slip Op 01171, the Supreme Court of New York, Appellate Division, Second Department (Appellate Court), considered whether a contractor could be found liable for its subcontractor’s alleged negligence in causing injury to a homeowner’s property. The homeowner’s insurer, as subrogee of the homeowner, sought to recover damages from the contractor despite an allegation that the subcontractor – an independent contractor – caused the injury to the homeowner’s property. Finding that there was no evidence that any of the exceptions to the non-liability rule related to hiring independent contractors applied, the Appellate Court affirmed the lower court’s decision granting judgment in favor of the contractor.

In this case, the homeowner hired the contractor (defendant) to convert her garage area into a bedroom and an office. The defendant later hired a subcontractor to perform the electrical rough-in work. At trial, the homeowner’s insurer (plaintiff) presented evidence that the subcontractor, who damaged an existing wire with a drill bit, caused an electrical failure that resulted in a fire. The defendant argued that it could not be held liable for the subcontractor’s alleged negligence because the subcontractor was an independent contractor and, on appeal, the Appellate Court agreed.

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This entry was posted in Negligence, New York, Uncategorized and tagged Negligence – Duty, New York.

Florida Passes Tort Reform Bill

This entry was posted by William L. Doerler on March 27, 2023.

On Friday, March 24, 2023, Florida’s governor, Ron DeSantis, signed into law a tort reform bill, HB 837. The bill impacts, among other things, bad faith actions and attorney’s fee awards. Of particular importance to subrogation professionals are provisions impacting comparative fault, the statute of limitations and premises liability with respect to the criminal acts of third persons.

With respect to the statute of limitations, the bill amended Fla. Stat. § 95.11(3) and (4), to reduce the statute of limitations for negligence actions from four (4) years to two (2) years.

As for comparative fault, Fla. Stat. § 768.81 was amended to move Florida from a pure comparative fault jurisdiction for negligence actions to a modified comparative fault jurisdiction. Pursuant to § 768.81(6), as revised, in a negligence action subject to that section, “any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages.” Section 768.81(6), however, does not apply to actions for damages for personal injury or wrongful death arising out of medical negligence.

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This entry was posted in Comparative-Contributory Negligence, Contribution-Apportionment, Florida, Negligence, Statute of Limitations-Repose and tagged Apportionment, Comparative Fault, Condominiums, Florida, Negligence, Non-Party at Fault, Statute of Limitations.

A Tort, By Any Other Name, is Just a Tort: Massachusetts Court Bars Contract Claims That Sound in Negligence

This entry was posted by Gus Sara on March 3, 2023.

In University of Massachusetts Building Authority v. Adams Plumbing & Heating, Inc., 2023 Mass. App. Unpub. LEXIS 28, 102 Mass. App. Ct. 1107, the Appeals Court of Massachusetts (Appeals Court) considered whether the lower court properly held that the plaintiff’s breach of contract and indemnification claims were time-barred by the statute of repose because they sounded in tort. The Appeals Court held that while the six-year statute of repose only applies to tort claims, they can also bar claims for breach of contract and indemnification if they sound in tort. The Appeals Court affirmed the lower court’s ruling, finding that the plaintiff’s breach of contract and indemnification claims were just negligence claims disguised as non-tort claims.

In 2013 and 2014, the University of Massachusetts (UMass) retained various contractors to renovate the dining hall for one of its campus buildings, which included the installation of new ductwork for the kitchen’s exhaust system. The dining hall opened for service in September 2014. In the Spring of 2018, it was discovered that the ductwork for the kitchen had collapsed. Further investigation revealed other deficiencies with the exhaust system. On December 1, 2020, UMass filed a lawsuit against various contractors, asserting negligence, breach of contract, and indemnification. The breach of contract claims alleged breach of express warranties.

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This entry was posted in Construction Defects, Contracts, Massachusetts, Negligence, Statute of Limitations-Repose, Subrogation and tagged Civil Procedure, Construction Contracts, Construction Defects, Massachusetts, Negligence, Statute of Repose, Subrogation.

Hold on Just One Second: Texas Clarifies Starting Point for Negligence Statute of Limitations

This entry was posted by Lian Skaf on June 3, 2022.

In construction or similar ongoing projects, problems often pop up. Sometimes they can pop up again and again. Making things even more complicated, one problem may affect another, seemingly new problem. When these construction problems result in property damage, timelines tend to overlap and determining when a statute of limitation begins to run for a particular claim can be difficult. Especially in states with short statute of limitations for tort claims like Texas, knowing when a statute begins to run is crucial for a subrogation professional. Continue reading →

This entry was posted in Construction Defects, Negligence, Statute of Limitations-Repose, Texas and tagged Construction Defects, Negligence, Statute of Limitations, Statute of Limitations - Tolling, Texas.

Can You Prove It? New Jersey Court Holds That Plaintiff Alleging Negligent Destruction of Evidence Failed to Sufficiently Prove Proximate Cause in Underlying Claim

This entry was posted by Gus Sara on October 20, 2021.

In 27-35 Jackson Ave., LLC v. Samsung Fire & Marine Inc. Co., No. A-2925-19, 2021 N.J. Super LEXIS 120, the Superior Court of New Jersey, Appellate Division (Appellate Division) considered whether the lower court properly granted the defendant’s summary judgment motion. In its motion, the defendant argued that the plaintiff could not establish proximate cause between the defendant’s alleged conduct of destroying or losing evidence and the plaintiff’s inability to prove liability against other responsible third parties. The Appellate Division affirmed the lower court’s ruling, finding that the plaintiff failed to provide sufficient evidence of a viable liability claim against potentially responsible third parties in the underlying claim. Continue reading →

This entry was posted in Negligence, New Jersey, Spoliation and tagged Causation, Negligence, New Jersey, Spoliation.

Industry Standard and Sole Negligence Defenses Can’t Fix a Defect

This entry was posted by Lian Skaf on May 11, 2021.

Strict products liability cases have been the subject of much fluctuation in the Pennsylvania courts over the last few years. Utilizing hope created by the courts in recent strict liability cases, defendants have tried to revive defenses based on meeting industry standards and the plaintiff’s contributory negligence. Recently, the Superior Court of Pennsylvania tempered that hope with limitations of how far strict liability defenses can extend. Continue reading →

This entry was posted in Comparative-Contributory Negligence, Evidence, Negligence, Pennsylvania, Products Liability and tagged Negligence, Pennsylvania, Products Liability.