Tag Archives: Negligence

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.

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.

Massachusetts Pulls Phased Trigger On Its Statute of Repose

This entry was posted by Kyle Rice on November 30, 2020.

In D’Allesandro v. Lennar Hingham Holdings, LLC, 486 Mass 150, 2020 Mass. LEXIS 721, the Supreme Judicial Court of Massachusetts answered a certified question regarding how to apply the Massachusetts statute of repose, Mass. Gen. Laws ch. 260, § 2B, in regards to phased construction projects. The court held that, in this context, the completion of each individual “improvement” to its intended use, or the substantial completion of the individual building and the taking of possession for occupancy by the owner or owners, triggers the statute of repose with respect to the common areas and limited common areas of that building. Additionally, the court held that where a particular improvement is integral to, and intended to serve, multiple buildings (or the development as a whole), the statute of repose is triggered when the discrete improvement is substantially complete and open to its intended use.

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

Strictly Speaking, the Plaintiff’s Fault Matters in Products Liability Actions in Georgia

This entry was posted by William L. Doerler on October 26, 2020.

Many states, finding that the purpose of the strict liability doctrine is to protect otherwise defenseless victims from defective products, hold that principles of comparative negligence do not apply to strict liability actions. Georgia is not one of those states. In Johns v. Suzuki Motor of Am., S19G1478, 2020 Ga. LEXIS 760, the Supreme Court of Georgia recently held that Georgia’s comparative fault statute, OCGA § 51-12-33, applies to strict products liability claims brought pursuant to Georgia’s product liability statute, OCGA § 51-1-11. Continue reading →

This entry was posted in Comparative-Contributory Negligence, Georgia, Negligence, Products Liability, Uncategorized and tagged Apportionment, Georgia, Negligence, Products Liability.

Illinois Federal Court Determines if Damages Are Too Remote

This entry was posted by Lian Skaf on June 3, 2020.

Foreseeability is a tort concept that tends to permeate several aspects of legal analysis, often causing confusion in litigants’ interpretation of, and courts’ application of, foreseeability to their cases. In Cincinnati Ins. Co. v. Progress Rail Services. Corp., 2020 U.S. Dist. LEXIS 73967 (C.D. Ill.), the United States District Court for the Central District of Illinois took on the task of analyzing a case dealing with foreseeability issues to determine if the defendant owed the plaintiff a duty and if the damages were so remote as to violate public policy. The court held that since the defendant’s actions contributed to the risk of harm to the plaintiff and the facts satisfied the four-prong duty test, the defendant owed the plaintiff’s subrogor a duty of reasonable care. It also held that the plaintiff’s damage claim did not open the defendant up to liability that would violate public policy. Continue reading →

This entry was posted in Damages, Illinois, Negligence and tagged Damages, Illinois, Negligence, Negligence – Duty.

Massachusetts Court Clarifies Statute of Repose Trigger for Multi-Phase Construction Projects

This entry was posted by Kyle Rice on January 7, 2020.

In D’Allesandro v. Lennar Hingham Holdings, LLC, C.A. No. 17-cv-12567-IT, 2019 U.S. Dist. LEXIS 185874, the United States District Court for the District of Massachusetts recently discussed a case against a general contractor and its related entities, all of whom were involved in the construction of a multi-phase construction project. The court held that, in this context, completion of the “improvement” – which was the whole project, rather than each individual phase – triggered the six-year statute of repose. The court also held that the plaintiffs’ misrepresentation, breach of fiduciary duty and unfair business practices claims were not claims based on the design and construction of the improvement and, thus, were not subject to the statute of repose.

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This entry was posted in Construction Defects, Fraud - Misrepresentation, Massachusetts, Statute of Limitations-Repose and tagged Condominiums, Construction Defects, Massachusetts, Negligence, Statute of Repose.