Nightclub Patron Held to Be Third- Party Beneficiary … · Christopher G. Wosleger ... Nightclub Patron Held to Be Third-Party Beneficiary of Contract Between Security Company and

X continued on page 8 X continued on page 5

Where Does the Stage End?

The New York Court of Appeals Offers Its Opinion in Dzielski v. Essex Insurance Co.

By Steven H. Rosenfeld and Christopher G. Wosleger

A recent decision by the New York Court of Appeals (New York’s high-

est court) is likely to have important coverage implications for insurers and their insured restaurants, bars, night-clubs and athletic, entertainment and other live event organizers and promot-ers. The case, Dzielski v. Essex Insur-ance Co., 19 N.Y.3d 871, 947 N.Y.S.2d 47, 969 N.E.2d 1162 (2012), may well have changed the way the courts inter-pret a common comprehensive general liability (CGL) policy exclusion known as the “stage hand” exclusion. This exclusion has traditionally served to preclude coverage to insureds only in those instances when an individual is injured while actually participating in or during a show or live music event.

The Court of Appeals has now held that this exclusion can apply to claims arising from the setting up and/or disassembling of sound equip-ment or other materials related to a

Nightclub Patron Held to Be Third-Party Beneficiary of Contract Between Security Company and Nightclub By Steven H. Rosenfeld and Gregg Scharaga

Edward Ramirez was a patron at Marquee nightclub, operated

by 10th Avenue Hospitality Group, LLC, on the evening of August 28, 2009. He arrived at the premises at approximately 10:30 p.m. and was given free admission because he was with a friend, DJ Schuller. DJ Schuller was going to work that night at Marquee as a deejay on the mezzanine level.

The deejay booth on the mezzanine level was encased in plastic. In order to go from the first floor of the premises to the mezzanine level, Ramirez and Schuller went up the staircase, which was located on the right wall of the club. The dee-jay booth was approximately 30 feet from the top of that staircase. Schuller gave Ramirez complementary drink tickets, and Ramirez obtained his first alcoholic drink, a Jack Daniels on the rocks, by the bar near Schuller’s deejay booth on the mezzanine level.

At approximately midnight on August 29, 2009, Ramirez left the premises and went to another nightclub called Mansion. He remained at Mansion for less than 30 min-utes and consumed one Jack Daniels on the rocks while he was there. Upon exit-ing Mansion, Ramirez went to a bodega and purchased and consumed a croissant and a Heineken beer. He then returned to Marquee between 1:00 and 1:30 a.m. He remained on the first floor of the premises for approximately 15 minutes and had another Jack Daniels on the rocks, which was served to him by a bartender on the first floor.

Fall 2012 — Volume 6, Issue 3

IN THIS ISSue: 1 Insurance Coverage Corner • Nightclub Patron Held to Be Third-Party Beneficiary of Contract Between Security Company and Nightclub 2 “Head Cases” 4 Insurers Try to Get Out of Concussion Game 6 Construction Corner 9 HRRV on Trial 10 HRRV Decisions of Interest

Legal Insights / Fall 2012—Volume 6, Issue 3 / www.hrrvlaw.com2

Personal Attention. Powerful Representation. Creative Solutions.

“Head Cases”The university of Texas Fall 2012 Symposium examines Concussions and Litigation

By Carla Varriale

On September 7, 2012, the Texas Review of Entertainment and Sports Law (TRESL) hosted its Fall 2012 Symposium at the University of Texas School of

Law. The symposium, “The Dark Side of Sports and Entertainment Law,” examined problematic legal issues including gambling and doping.

I joined panelists Darren Heitner, Esq., of Wolfe Law Miami, P.A. and Professor Der-ek Muller of Pepperdine University School of Law to discuss another issue that has been omnipresent in the media and in law journals: concussions. The panel discus-sion was called “Head Cases: Long-Term Tort Implications of Professional Sports.”

We first discussed the recent blockbuster law-suit, In Re National Football Players’ Concussion Litigation (NFL Concussion Litigation) venued in the United States District Court in the Eastern District of Pennsylvania. Although we discussed the claims and likely defenses at issue in the NFL Concussion Litigation, the panel also described similarities to previous complex litigations such as the tobacco and asbestos litigation. Our dia-logue evolved into an analysis of the underlying purposes of tort law and whether the wellspring of concussion lawsuits made sports such as football safer for all participants.

At the outset, Darren Heitner and I outlined the various causes of action asserted in the NFL Concussion Litigation. The master complaint is a compendium of tort claims. The crux of the ac-tion against the National Football League (and other defendants including helmet manufacturer Riddell, Inc.) is that they breached a duty of care

by allegedly concealing information about the long-term effects of multiple concus-sions from NFL players in order to profit at the expense of the players’ health. The lawsuit claims that the NFL knew about the link between concussions and brain diseases (including chronic traumatic encephalitis) for years, but the NFL withheld information from the players. The causes of action asserted in the NFL Concussion Litigation by the players and their families include conspiracy, fraud, negligence, negligent misrepresentation, negligent hiring and negligent retention. The claims against the helmet manufacturers include failure to warn and strict liability for de-sign defect with regard to the helmets.

There are, however, defenses, including some procedural defenses such as the ex-piration of the applicable statutes of limitation, and preemption by the parties’ col-lective bargaining agreement.1 Other potential defenses include lack of causation (due to the difficulty of identifying the injury-producing concussion and because the plaintiffs could have sustained concussions prior to playing in the NFL) and the

1. The NFL filed a motion to dismiss based on preemption grounds, i.e., that the plaintiffs’ terms and conditions of NFL employment were defined by the collective bargaining agreements and the NFL Constitution and Bylaws. Consequently, the NFL has argued that the NFL Concussion Litiga-tion is a labor dispute and should not be before the court because the dispute must be arbitrated Therefore, the NFL argued that the NFL Concussion Litigation should be dismissed with prejudice.

Concussion awareness has transcended the NFL and the sport of

football. Although there are reportedly 67,000

diagnosed concussions each year in high school football,

concerns about the long-term impact of concussions have surfaced in sports as

diverse as soccer and mixed martial arts.

X continued on page 3

http://www.hrrvlaw.com




3

assumption of a known or obvious risk associated with the sport of football — an undeniable contact sport.

Professor Muller then outlined the distinct nature of “multi-district litigation” (MDL), a federal legal procedure intended to streamline the litigation of complex cases.2 Briefly, he explained that the NFL Concussion Litigation is a civil action that involved one or more common questions of fact that had been pending in different districts. To process the claims of numerous plaintiffs in numerous federal courts, the NFL Con-cussion Litigation was appropriately consolidated under the MDL statute for pretrial proceedings, including discovery.

Professor Muller analogized the NFL Concussion Litigation to prior complex litigations such as tobacco and asbestos litigation. A common thread was the alleged nondisclosure to “consumers” about health risks and an alleged withholding of information. He further observed that the NFL Concus-sion Litigation was a “very deliberate litigation” because the plaintiffs had chosen to sue few defendants, leaving the de-fendants to point a finger at other potential defendants and implead them into the litigation. Professor Muller also char-acterized the NFL’s recent decision to move to dismiss the NFL Concussion Litigation on preemption grounds only as an astute move, as the case could be dismissed and arbitrated without the need to address any of the information the NFL defendants may have possessed about the supposed health risks associated with repeated concussions.

Whatever one thinks of the claims and defenses asserted in the NFL Concussion Litigation, the panel noted that there is no dispute that the litigation has had an impact beyond the NFL. Concussion awareness has transcended the NFL and the sport of football. Although there are reportedly 67,000 diagnosed concussions each year in high school football,3 concerns about the long-term impact of concussions have surfaced in sports as diverse as soccer and mixed martial arts. Forty states and the District of Columbia currently have concussion laws,4 and Michigan, Nevada, Ohio and West

2. The MDL statute is set forth at 28 U.S.C. § 1407.

3. See Broglio, S.P.; Sosnoff, J.J.; Shin, S.; He, X.; Alcaraz, C. and Zim-merman. J. “Head impacts during high school football: a biomechanical assessment.” Journal of Athletic Training. 2009. 44:342-349.

4. Those states are: Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Mary-land, Massachusetts, Minnesota, Missouri, Nebraska, New Hamp-shire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Texas, Utah, Vermont, Virginia, Washington, Wisconsin and Wyoming. See http://usafootball.com/news/featured-articles/see-where-your-state-stands-concussion-law.

Virginia have pending concussion legislation. Participants (and parents of young participants) are now better equipped to determine if participating in sports like football is worth the risk of potential long-term health problems.

For example, Wisconsin recently implemented a new concus-sion law directed at “youth athletic activity.”5 2011 Wisconsin Act 172 created Wis. Stat. section 118.293 of the Wiscon-sin Statutes effective on April 17, 2012. The Wisconsin law delineates an operator’s duties and responsibilities toward young athletes involved in organized activities (including but not limited to public or private schools but not colleges or universities). The Wisconsin law requires that operators of youth athletic activities must provide a concussion and head injury information sheet to coaches and participants. The in-formation sheet must be signed and returned to the operator before the youth is allowed to participate in the activity. If the participant is under the age of 19, a parent or guardian must sign this form.

Importantly, the Wisconsin law prevents a participant who is removed from a youth athletic activity for a concussion or head injury from resuming participation until that person is evaluated by a “health care provider.” The health care pro-vider must have specific training and experience in evaluating pediatric concussions and head injuries and must be prac-ticing within the scope of his or her credential. The health care provider must provide written clearance for the injured participant. The Wisconsin law affords certain immunity from civil liability for coaches, officials or volunteers. The immunity shields them unless they fail to remove an injured participant or allow an injured participant to return to play without written clearance unless their conduct constitutes gross negligence or wanton and willful misconduct. This sort of balancing of the disclosure of the risks associated with head injuries with the desire to participate in athletic activities dovetailed with our discussion of the NFL Concussion Litigation.

The trajectory and outcome of the NFL Concussion Litigation remain a wild card. However, if the sine qua non of tort law is to encourage prudent behavior, the “head cases” and the focus on concussion risks are the start of a critical fourth-quarter drive toward the end zone.

Contact

Carla Varriale: 646-747-5115 or [email protected]

5. This is defined as an organized athletic activity, not just football, involving participants under 19 years of age, and it includes practices, games and competitions.

“Head Cases”From page 2




Insurers Try to Get Out of Concussion Game

By Jarett Warner

An attempt by an insurer to disclaim excess coverage to the National Football League (NFL) relating to a multitude

of lawsuits and claims by former players concerning neuro-logical and other debilitating injuries has spurred even further litigation.

There have been numerous reports and claims of concus-sions and other neurological injuries to former NFL players in recent months. One excess insurer, Alterra America Insur-ance Company, initially sought a judicial declaration that it is not obligated to pay defense costs or judgments obtained against the NFL relating to these claims and lawsuits. On the heels of Alterra’s declaratory judgment action, the NFL has filed a lawsuit of its own seeking a declaration that Alterra, as well as numerous other insurers, are obligated to defend and indemnify the NFL. Travelers Insurance Company then filed its own lawsuit concerning its obligations.

On August 13, 2012, Alterra filed a declaratory judgment ac-tion in the Supreme Court of the State of New York, County of New York (Index No. 652813/12) against the NFL and NFL Properties, LLC. In its pleadings, Alterra states that it issued an excess policy to the NFL for the period of August 1, 2011, until August 1, 2012. The policy issued by Alterra has a limit of $25 million per occurrence and provides coverage to the NFL in excess to Ace American Insurance Company’s $1 mil-lion per occurrence commercial general liability policy and in excess of Chartis Insurance Company’s $50 million limit per occurrence umbrella liability policy. Alterra’s pleadings do not indicate the aggregate limits of the respective policies.

Alterra asserts that the claims of the neurological injuries by the NFL’s former players were caused by, among other things, the NFL’s negligence and fraud. Alterra claims that although the NFL has tendered some of the underlying ac-tions, it timely disclaimed coverage. The underlying claims tendered by the NFL include alleged debilitating injuries from notable players including Jamal Lewis, Fred Barnett, Jeff Hostetler, Art Monk, Eric Dickerson and Danny White.

Alterra seeks a declaration that it has no obligation to defend or indemnify the NFL in the underlying actions pursuant to the terms of its insurance policy.

Only two days after Alterra filed its action, the NFL filed its own action in the Superior Court of California (Index No. BC490342), seeking a declaration that more than 20 different insurers have an obligation to provide defense and indemnity with regard to the more than 3,000 concussion-related law-suits filed by the NFL’s former players. The NFL named as a

defendant almost every insurer with which it has ever had a policy — regardless of whether there is a policy currently in effect. Among the insurers that the NFL names as defendants in the California declaration action are Ace, Allstate, Chartis, Chubb, Crum & Forster, Fireman’s Fund, Hartford, OneBea-con, Transatlantic, Travelers and, of course, Alterra. In addi-tion to a declaration as to the insurance coverage owed by the defendants, the NFL seeks $5 million in attorneys’ fees and other costs it maintains that it has already expended in the defense of numerous neurological lawsuits brought by former players and their spouses. Notwithstanding the already pending lawsuit commenced by Alterra in New York and the fact that many of the actions started by former play-ers have been consolidated into a single federal multidistrict litigation in Pennsylvania, the NFL maintains that its action was properly brought in California because many of its poli-cies were brokered in California, the NFL has three teams in the state and the NFL has held numerous championship games there.

A week after the filing of Alterra and the NFL’s respective lawsuits, Travelers filed a state action of its own in Supreme Court of the State of New York, County of New York (Index No. 652933/12). Travelers also seeks a declaration that it has no obligation to defend or indemnify the NFL with regard to these lawsuits. Travelers maintains that it only insured the NFL’s marketing company, NFL Properties, Inc. Subsequent-ly, Alterra amended its complaint in order to attempt to bring the insurers named as defendants in the NFL’s California ac-tion into its New York case. In response, the NFL moved to dismiss the Alterra action, arguing that Alterra did not have standing to name these insurers in its New York action since there was already an action pending in California, which names Alterra, among others, as defendants.

These coverage issues have the potential to create more trouble for the NFL than Spygate and Bountygate combined, and the litigation will likely take years before there is a resolu-tion. At the outset, the courts may determine whether these various coverage actions should be consolidated for purpos-es of discovery and/or trial and, if so, in what venue. This will go hand in hand with choice of law arguments due to, among other things, differences in insurance coverage principles in New York and California. It will also be extremely difficult to determine when a specific player’s injury or injuries occurred and, as a result, which insurance policy or policies should apply. The State of California could crown several additional Super Bowl champions before all is said and done.

Contact

Jarett L. Warner: 646-747-5104 or [email protected]





5

Ramirez then walked upstairs using that same right staircase to the mezzanine level. Ramirez spoke with Schuller and, thereafter, consumed another Jack Daniels on the rocks, which was served to him by the bartender on the mezzanine level. Ramirez then began dancing with a girl in the area near the deejay booth.

At one point, Ramirez put his hands on the plastic which en-cased Schuller’s deejay booth. Carl Davis, a security guard employed by Forte Security at the club, warned Ramirez to remove his hands from the deejay booth. Ramirez did not remove his hand from the plastic. Approximately two minutes later, Davis returned and gave Ramirez a second warning to remove his hands from the plastic encasing. When Ramirez did not listen, the security guard told Ramirez “it was time to go,” placed his hand on Ramirez’s right shoulder, and started to escort Ramirez out of the premises.

At that time, Ramirez informed security guard Davis that he had to return the car keys to DJ Schuller. Davis removed his hands from Ramirez, who returned the keys to Schuller. Ramirez then proceeded to the staircase to walk down to the first floor. Ramirez testified that when he was at the top of the staircase, he took a step with his right foot and reached out for a handrail, but that there was no handrail. It was at this point that Ramirez slipped and fell down a flight of stairs, coming to rest on a concrete landing. Security guard Davis was not touching the plaintiff in any manner at the time he slipped and fell. It is undisputed that the plaintiff was intoxi-cated at the time of the accident.

After Ramirez fell to the concrete landing, he alleged he be-came unconscious. Security guards from Forte Security were then called to the scene. According to video footage of the plaintiff’s accident, while Ramirez lay unconscious, a female patron was allowed to approach him and hold his head in her lap. Security guards Bryan Vetell and Chris Sali, who were also employed by Forte Security, then picked up Ramirez’s body and, with a guard on either side of him holding him up, brought him to his feet and into the vestibule of Marquee.

In the video, Ramirez is next seen lying on the floor in the nightclub’s exit vestibule. The video shows one of the secu-rity guards going through the plaintiff’s pockets and, in doing so, rolling him over to his side. Ramirez’s head was not sta-bilized or protected at this time. After lying on the floor of the vestibule for several minutes, Ramirez attempted to stand but was unable to do so. A security guard then began cleaning Ramirez’s face as it was bleeding. Security guard Vetell testi-fied that he then put the plaintiff in a cab.

Ramirez was found in a McDonald’s parking lot two to three hours later by two strangers, who called one of Ramirez’s friends using the plain-tiff’s cell phone. Ramirez was then taken to Bellevue Hospital by ambu-lance. The emer-gency room record indicated that the plaintiff had the following injures: swelling and con-tusions on the left side of his head, five separate sites of bruising on his back, abrasion five inches long on left illiac crest, three-inch ecchymosis back of right thigh, inside of left thigh posterior medial aspect fresh ecchymosis about eight inches in length and bruising on his right shoulder. While in the emergency room, the plaintiff had a change in mental status and had a seizure. Ramirez was then transferred to the operating room for “emergency life saving surgery,” according to the surgeon. The plaintiff alleged that Forte Security’s actions after he fell caused or contributed to his injuries.

In Ramirez v. 10th Avenue Hospitality Group, LLC, (Sup. Ct. New York Cty., Index No. 118129/2009), Forte Security moved for summary judgment to dismiss all claims and cross-claims against it, arguing that it did not owe a duty of care to the plaintiff. Specifically, Forte argued that the plaintiff was not an intended third-party beneficiary of the Security Services Contract between 10th Avenue and Forte, that the plaintiff’s intoxication was the sole proximate cause of his ac-cident and that Forte’s employees were not actively negligent in escorting the plaintiff down the stairs.

Acting on behalf of 10th Avenue, HRRV opposed the mo-tion, as did the plaintiff’s counsel. The court denied the mo-tion and held that if “an injured party [seeks to] recover as

Nightclub Patron Held to be Third-Party Beneficiary of Contract Between Security Company and NightclubFrom page 1





a third-party beneficiary for failure to perform a duty imposed by contract, it must clearly appear from the provisions of the contract that the parties thereto intended to confer a direct benefit on the alleged third-party beneficiary to protect him from physical injury.” Bernal v. Pinkerton’s, Inc., 52 A.D.2d 760 (1st Dep’t 1976). The par-ty must be an intended and not a mere incidental beneficiary, but the party is not required to be mentioned as a party to the contract. LaSalle Nat. Bank v. Ernst & Young LLP, 285 A.D.2d 461 (1st Dep’t 2001).

Ultimately, the court determined that Forte owes a duty to the plaintiff as the plaintiff was a third-party beneficiary of the Security Service Contract. “It is clear from the language of Paragraph I of the contract that Marquee and Forte Security intended to protect patrons such as the plaintiff from personal injury at the prem-ises. Thus, the plaintiff is an intended third-party beneficiary of the contract and not merely an incidental beneficiary. Although the plaintiff is not directly mentioned by name in the contract, that is not required in order to be considered a third-party beneficiary under the contract.”

The court noted a similar result in the case Haber v. Precision Sec. Agency, 24 Mise.3d 1229 (Sup. Ct. Kings Cty. 2009). In Haber, the court denied defendant Precision’s motion for summary judgment on the ground that it owed a duty to the plaintiff as a third-party beneficiary of a contract Precision maintained with co-de-fendant Stereo nightclub. Plaintiff, a patron of Stereo, was assaulted by another pa-tron of the club. The assault occurred right outside the doors of the club, a few feet away from Precision’s security guards. Precision asserted in its motion that it did not owe a duty to the plaintiff as it only maintained a contractual relationship with Stereo and thus could not be held liable for not corning to the plaintiff’s aid during the assault. However, the court cited the “Services to be Provided” provision of the contract which stated that services included, but were not limited to, “protecting with non-lethal, non-injurious and reasonable methods all property, employees and other persons legally on the property of the Venue . . .” Haber, 24 Misc.3d at *5. The court found that that provision “demonstrate[s] that Precision intended to pro-vide security services to protect third parties legally on the property and, therefore, patrons were intended beneficiaries of the contract to provide security.” Id.

As the same contractual language was used in the contract between 10th Avenue and Forte, the court found that the plaintiff is a third-party beneficiary of the con-tract and, thus, was owed a duty by Forte Security. “There exist issues of fact as to whether Forte Security’s behavior on the evening of the plaintiff’s accident consti-tuted negligence and whether that negligence contributed to the plaintiff’s injuries.”

While not specifically mentioned, the court also denied Forte’s requested relief to dismiss 10th Avenue’s cross-claims.

Forte has filed a notice of appeal.

Contact

Steven H. Rosenfeld and Gregg Scharaga represented 10th Avenue Hospitality Group, LLC.

Steven H. Rosenfeld: 646-747-5105 or [email protected]

Gregg Scharaga: 646-747-5113 or [email protected]

Courts Continue Fact-Specific Approach to the Application of Labor Law § 240(1)

By Gail L. Ritzert

Judges and attorneys often struggle with how to apply New York’s Labor

Law when assessing the language of sections 240 and 241 to facts of a par-ticular case. Every decision rendered in a Labor Law §§ 240 or 241 case reiterates that courts do not and can-not apply a cookie-cutter approach to every fact pattern. Within the last six months, the courts have rendered a number of decisions that bring this fact home. A few of those decisions will be discussed in this article.

As you have read in this column, Labor Law § 240(1) applies to construction-related accidents when the accident is a by-product of a gravity-related event — where the worker falls from a height or where materials or tools fall from a height due to improper protec-tions. However, it is a misconception to say that every fall from a height comes within the purview of Labor Law § 240(1). While the courts have not and will not impose a bright line height requirement in its analysis, not every height-related accident results in the imposition of liability under Labor Law § 240(1).

Recently, the Appellate Division, First Department determined in Cappabiana v. Skanska USA Building, 2012 N.Y. Slip 5948, that Labor Law section 240(1) does not apply where the plaintiff fell from a pallet that he was using as a work platform, which was at best 12 inches above the floor. In making its


Nightclub Patron Held to be Third-Party Beneficiary of Contract Between Security Company and NightclubFrom page 5





7

N.Y.3d 1 (2011), that “the statute’s reach is not limited to fall-ing worker cases or falling object cases in which the object directly strikes the worker and — more relevantly here — that the weight and force of the object during the descent must be considered in determining whether a height differential is de mimimis.” Thus, the court determined that despite the substantial weight of the truss and the significant force gen-erated as it fell due to the force of gravity, there was no el-evation differential present, let alone a “physically significant elevation differential” for Labor Law § 240(1) to apply.

Conversely, in Ventimiglia v. Thatch, Ripley & Co., LLC, et al, 96 A.D.3d 1043 (2d Dep’t 2012), the plaintiff was injured when he fell while traversing a plank walkway constructed over an eight-foot trench. The Appellate Division, Second Department reviewed the facts and circumstances presented to determine that the plank walkway was the equivalent of a scaffold, and that the plaintiff was not provided with sufficient protection from a physical significant elevation differential.

While the plaintiff’s bar pushes for every case involving a fall to come within the ambit of Labor Law § 240(1), we must look beyond the simple fact that either the plaintiff or an ob-ject fell, and investigate the how and why. The investigation and analysis could continue throughout the life of the case, and counsel should aggressively pursue facts and arguments to defeat the assertion that the plaintiff was subject to the gravity-related claim and that the elevation differential was physically significant.

Contact

Gail L. Ritzert: 516-620-1710 or [email protected]

determination, the court reviewed a number of decisions in which falls from heights of 10, 12 or 18 inches did not expose the plaintiff to the type of hazard that the scaffold law con-templated. See Lombardo v. Park Tower Mgt. Ltd., 76 A.D.3d 497; Torkel v. NYU Hospital Ctr., 63 A.D.3d 587; and Skud-larek v. Bethlehem Steel Corp., 251 A.D.2d 974.

In DeRosa v. Bovis Lend Lease LMB, Inc., et al, 2012 N.Y. Slip Op 5115, the Appellate Division, First Department reiter-ated that the protections afforded by Labor Law § 240(1) “is not implicated simply because an injury is caused by the effects of the force of gravity to the object.” The court went on to state that the “single decisive question is whether the plaintiff’s injuries were the direct consequence of the failure to provide adequate protection against a risk arising from a physically significant elevation differential. ”Citing Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599 (2009).

In DeRosa, the plaintiff, a cement truck driver, was told to position his truck directly next to another cement truck so the trucks could simultaneously pour cement into a hopper. This position provided limited access to the water-mixing valve. Thus, the plaintiff climbed onto the truck’s back fender, which was 36 inches above the ground to reach the valve. After opening the value, the plaintiff intended to climb the rear ladder on the truck to evaluate the consistency of the cement mixture. However, as he stood on the fender, the rotating hatch caught his shirt, propelling him upwards and over the top of the cement truck.

In determining that Labor Law § 240(1) did not apply to these facts, the Appellate Division determined that the plaintiff’s ac-cident arose from activities and circumstance that customar-ily arise on a construction site and did not flow directly from the application of gravity’s forces.

Similarly, the Appellate Division, Third Department deter-mined that Labor Law § 240(1) did not apply when a worker was injured when a truss fell after being struck by a bar joist being moved by a forklift. In Oakes v. Wal-Mart Real Estate Business Trust, et al, 2012 N.Y. Slip Op 5694, the plaintiff was walking between two 30-foot long, 10,000-pound trusses, comparing them to the blue prints, when a forklift operated by a co-worker drove over a soft spot in the ground causing one of the wheels to sink six to eight inches. As a result, the unsecured bar joist being carried by the fork shifted side-ways and struck one of the trusses, causing the truss to fall on top of the plaintiff. While the plaintiff argued that the truss fell because it was not properly secured, the court relied on the instructions provided by the Court of Appeals in Runner, supra, and Wilinski v. 334 E. 94th Hous. Dev. Fund Corp., 18

Construction CornerFrom page 6




performance and brought by individu-als who were not even participating in the entertainment.

In Dzielski, the plaintiff commenced an action against Essex Insurance Com-pany seeking a declaration that the insurer had an obligation to indemnify its insured in an underlying personal injury action commenced by the plain-tiff, in which the insured had defaulted. In the underlying action, plaintiff Mark Dzielski was an independent contractor providing sound equipment for a band that was performing at a nightclub. He was injured when he fell from a loading dock after exiting the rear door of the nightclub. The accident occurred while Dzielski was in the process of removing his equipment after the conclusion of the show.

Essex Insurance had disclaimed cov-erage to the nightclub based on the “stage hand” exclusion contained in the policy’s “Restaurant, Bar, Tavern, Night Clubs, Fraternal and Social Clubs Endorsement.” That exclusion provided that “the coverage under this policy does not apply to ‘bodily injury’ . . . or any injury, loss or damage arising out of . . . injury to any entertainer, stage hand, crew, independent contractor, or spectator, patron or customer who par-ticipates in or is a part of any athletic event, demonstration, show, competi-tion or contest . . .”

The plaintiff argued that the exclusion did not apply to the particular facts in this case, and the Appellate Division, Fourth Department majority, in affirm-ing the trial court decision, agreed, not-ing that the accident occurred after the show had ended and that the defect in the premises was wholly unrelated to the show itself. The court also rea-soned that the language “participates

in or is a part of any show” is ambigu-ous and accordingly resolved that am-biguity against the insurer, awarding summary judgment to the plaintiff. Dzielski v. Essex Insurance Co., 90 A.D.3d 1493, 935 N.Y.S.2d 402 (4th Dep’t 2011).

In a dissenting opinion eventually ad-opted by the Court of Appeals, two judges disagreed that the “stage hand” exclusion was ambiguous and criticized the majority for reading that exclusion too narrowly to encompass only those persons who actually per-formed in the show or were injured by activities occurring during the show. The dissent articulated that the plain-tiff was hired by the band to provide sound reinforcement services for the show, and as such, he “participate[d] in or [wa]s part of the show,” bringing him squarely within the exclusionary language.

Further, the dissenters noted that “[i]n the insurance context, the phrase ‘aris-ing out of’ has been broadly interpreted to mean ‘originating from, incident to,

or having connection with’ and that the plaintiff’s injury ‘ar[o]se[ ] out of’ his participation in the show within the meaning of the exclusion,” since his accident occurred while he was in the process of removing his sound equip-ment from the nightclub. The dissent reasoned that the process of packing up and removing sound equipment at the conclusion of a show necessarily “originate[s] from, [is] incident to, or ha[s] connection with” the show. 935 N.Y.S.2d at 405-06 (citations omitted).

Essex Insurance appealed the Appel-late Division decision to the Court of Appeals, which ruled that the Appel-late Division dissenters had it right and accordingly reversed the Appellate Court’s decision, instead granting Es-sex’s motion for summary judgment and declaring that it had no obliga-tion to indemnify its insured in the underlying personal injury action. The Court of Appeals adopted the reason-ing articulated by the dissent in ruling that the plaintiff’s injury arose out of his participation in the show, since his injury occurred while he was removing his sound equipment from the show, bringing this particular claim within the ambit of the “stage hand” exclusion of the policy’s “Restaurant, Bar, Tavern, Night Clubs, Fraternal and Social Clubs Endorsement.”

The Court of Appeals’ decision to apply the “stage hand” exclusion more liber-ally rather than limiting it to just those individuals performing in and injured during a show is likely to have far-reaching implications. Most certainly, insurers will look to rely on the Court of Appeals liberal definition of “par-ticipant” and broad application of the “arising out of” language to apply the “stage hand” exclusion to any claim even remotely related to a live event, significantly limiting coverage.

Contact


Christopher G. Wosleger: 646-747-6780 or [email protected]

From page 1





9

HRRV ON TRIAL

HRRV Obtains Defense Verdict for Bar in Negligent Security/Assault CaseBenerofe v. Wolf and Thirsty TurtleSupreme Court, Westchester CountyIndex No. 114322/08May 23, 2012

Seth Benerofe alleged that on June 28, 2009, he was in-volved in an altercation with Bryan Wolf while each was a

patron at the Thirsty Turtle, a bar in White Plains, New York. Benerofe also alleged that in addition to providing inadequate security, Thirsty Turtle security guards assaulted him imme-diately after he was separated from the altercation with Wolf. Benerofe alleged, that as a result, he sustained a fracture to his nose, necessitating a synoplasty; a fracture to his left or-bital; and facial lacerations.

At trial, the plaintiff argued that he and Wolf engaged in a heated argument that lasted three minutes. Benerofe further alleged that the heated argument was started by Wolf when he spoke to the plaintiff in an offensive and derogatory man-ner. Although Benerofe admitted to throwing the first punch, he claimed to have done so only after Wolf made a sudden jerking movement toward him. It was the plaintiff’s position that he acted in self-defense. Benerofe further alleged that Wolf struck him in the face several times before security guards were able to break up the fight. He said that the se-curity guards then proceeded to punch, stomp and kick him after he was separated from Wolf.

Prior to trial, the plaintiff moved for spoliation of evidence against Thirsty Turtle on the basis that the surveillance video abruptly ended. It was argued that had the video not abruptly

ended, it would have depicted the assault by the security guards on the plaintiff. While the court denied the plaintiff’s motion, it did agree to present the jury with a spoliation of evidence charge.

Several nonparty witnesses were called to testify at the trial, including two of the plaintiff’s friends who were present when the altercation occurred, a White Plains police detective and the doctor who treated the plaintiff in the emergency room.

Wolf argued that Benerofe started the fight when he threw the first punch, therefore Wolf was acting in self-defense.

Thirsty Turtle not only submitted evidence to demonstrate that it provided adequate security, but that it responded to the altercation as soon as its security guards became aware of it. Thirsty Turtle relied on the surveillance footage to dem-onstrate that security guards responded immediately after the altercation started. In defense of the assault claim, Thirsty Turtle established through the testimony of one of Benerofe’s friends, that she was with the plaintiff from the moment he was pulled from the fight up until he was at the emergency room and she admitted that she did not observe security guards assault the plaintiff.

Finally, Thirsty Turtle submitted into evidence the police investigation report indicating that no one, including the plaintiff, reported to the police that security assaulted him. While the plaintiff argued that he was on pain medication at the time he provided the statement (given to him after he left the emergency room) and his recollection was not clear, the emergency room records and the doctor’s testimony estab-lished that the plaintiff was not given any pain medication or a prescription for pain medication.

At the close of evidence, the court dismissed the assault claims against Thirsty Turtle, finding that there was no tes-timony substantiating the plaintiff’s claim that he was as-saulted by security guards and the only testimony submitted was speculative and insufficient. As a result, the court did not present to the jury the spoliation of evidence charge relative to the missing video images.

The jury deliberated for approximately 15 minutes and re-turned a defense verdict.

Contact

Carmen A. Nicolaou was trial counsel for Tri-Kelly’s, Inc. d/b/a Thirsty Turtle.

Carmen A. Nicolaou: 914-290-6341 or [email protected]




HRRV DECISIONS OF INTEREST

Court Dismisses Defamation Case Against Bar and employeesPawar v. Stumble Inn, et alSupreme Court, New York CountyIndex No. 100686/12October 19, 2012

The plaintiff, an attorney, alleged that on April 23, 2011, he was at the Stumble Inn and had a beer. As he was leav-

ing, he saw a group of patrons who “appeared underage and intoxicated” and a security guard, who was not checking identification. The plaintiff called 911 about his concerns.

Stumble Inn employees advised the police when they arrived in response to the plaintiff’s call that, contrary to the plaintiff’s story, the plaintiff failed to pay $6.95 for an order of chicken wings and called the police when he was confronted about his refusal to pay. As a result, the police drove the plaintiff to the local precinct and, upon further investigation, voided the theft of services charge. The plaintiff was allowed to leave after he had spent several hours in custody. The plaintiff filed suit against the bar and its employees but did not name the New York Police Department.

The plaintiff’s complaint asserted the following causes of action: (1) defamation; (2) violation of the plaintiff’s First Amendment rights; and (3) vicarious liability of the bar for the conduct of its employees under the theory of “respondeat superior.” The plaintiff sought compensatory and punitive damages.

Acting on behalf of all of the defendants, HRRV moved to dismiss the complaint for failure to state a cause of action. Justice Louis York granted the motion in all respects. The court noted that the plaintiff’s cause of action for defamation had been insufficiently asserted in the form of slander. The al-legations that bar personnel falsely and publicly accused the plaintiff of theft of services and called him a thief were insuf-ficient. The elements of a cause of action for slander are (i) a defamatory statement of fact, (ii) that is false, (iii) published to a third party, (iv) of and concerning the plaintiff, (v) made with the applicable level of fault on the part of the speaker, (vi) either causing special harm or constituting slander per se, and (vii) not protected by privilege. [citation omitted]” (Albert v. Loksen, 239 F.3d 256, 265-266 [2d Cir. 2001]).

Although, generally, a plaintiff alleging slander must plead and prove that he or she has sustained special damages such as the loss of something having economic or pecuni-ary value, a plaintiff need not prove special damages if he or she can establish that the alleged defamatory statement

constituted slander per se. The four exceptions which consti-tute slander per se are statements (i) charging a plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that a plaintiff has a loath-some disease; or (iv) imputing unchastity to a woman. When statements fall within one of these categories, the law pre-sumes that damages will result, and they need not be alleged or proven.

The court held that the plaintiff failed to sufficiently allege the requisite elements of either special damages or slander per se. The charge of stealing a $6.95 order of chicken wings, hardly constitutes that of a serious crime.

The plaintiff’s second cause of action for violation of his First Amendment freedom of speech rights is predicated upon al-legations that bar personnel accused him of theft of services in retaliation for advising the NYPD of his concerns about the underage/intoxicated bar patrons. The first major qualifica-tion is that the First Amendment, as with the other freedoms in the Bill of Rights, protects people from governmental, not private, interference with our speech. The court concluded that, under the described circumstances, the plaintiff’s al-legations of retaliatory violation of his First Amendment right to freedom of speech failed to set forth a basis upon which to assert a cognizable claim in that he has merely asserted private, rather than governmental conduct.

The plaintiff’s third cause of action asserted against the bar was predicated upon the theory of “respondeat supe-rior” whereby a principal is deemed vicariously liable for the wrongdoings of its agents who (i) were acting within the scope of their employment and (ii) the employer is, or could be, exercising some control over the employee’s activities. Inasmuch as the plaintiff insufficiently asserted a viable claim against the bar’s employees who were, at all relevant times, performing their tasks on behalf of the bar, the assertion of “respondeat superior” as a predicate upon which to seek re-lief is inapplicable.

The court also dismissed the plaintiff’s claim for punitive damages, since the complaint of wrongful conduct did not arise to that necessary to support a cause of action for com-pensatory damages.

Contact

Steven H. Rosenfeld and Gregg Scharaga represented the defendants.


Gregg Scharaga: 646-747-5113 or [email protected]





Court Finds that Water Ride Patron Assumed Risk of Injury Speights v. Splish Splash at Adventureland, Inc. Palace Entertainment, Inc. and Palace Entertainment Supreme Court, Suffolk County Index No. 21560/2008 June 1, 2012

James Speights alleged that on August 19, 2005, he sustained personal injuries while a patron at Splish Splash Water Park, located in Riverhead, New York. He

claimed that he was injured on the Shot Gun Falls attraction due to Splish Splash’s negligent maintenance and operation of that ride. Speights specifically alleged that the water jets at the entrance of the ride were calibrated to a degree that ejected water forceful enough to cause him to fall and that Splish Splash failed to provide adequate warning of the existence of that condition. Speights also alleged that Splish Splash was negligent in the hiring, training and retention of its staff.

In support of Splish Splash’s summary judgment motion, Splish Splash argued that the plaintiff’s action should be dismissed under the assumption of risk doctrine. This doctrine precludes a plaintiff from recovering injuries sustained during volun-tary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law. Splish Splash relied upon the plaintiff’s deposition testimony to demonstrate that he understood and voluntarily assumed any risks associated with using the water slide. Splish Splash argued that the plaintiff was an adult who had prior experiences riding water slides and thus understood and appreciated any risks associated with the use of same. Further, Splish Splash argued that it had no notice of a “dangerous condition” existing at the Shot Gun Falls attraction. In an affidavit, Splish Splash’s general manager said there had been no prior similar ac-cidents or complaints with respect to the water jets, lack of signage or inadequate staffing.

In opposition to Splish Splash’s motion, the plaintiff attempted to raise a triable is-sue of fact as to the existence of a dangerous condition over and above the risk inherent in riding the Shot Gun Falls attraction. The court noted that the plaintiff’s allegations were nothing more than bare and conclusory statements. Furthermore, the plaintiff’s allegations were unsupported by any evidence.

The court granted Splish Splash’s motion for summary judgment, holding that Splish Splash established a prima facie entitlement to dispositive relief, as a matter of law, by presenting evidence that the plaintiff was an adult at the time of the acci-dent and understood and voluntarily assumed the risks inherent in utilizing the Shot Gun Falls attraction.

Contact

Carla Varriale and Kenneth Kim represented the defendants.

Carla Varriale: 646-747-5115 or [email protected]

Kenneth Kim: 646-747-5123 or [email protected]

The court granted Splish Splash’s motion for summary judgment,

holding that Splish Splash established a

prima facie entitlement to dispositive relief,

as a matter of law, by presenting evidence

that the plaintiff was an adult at the time of the accident and understood and voluntarily assumed the risks inherent in utilizing the Shot Gun

Falls attraction.




1065 Avenue of the Americas Suite 800

New York, New York 10018 212-488-1598

212-564-0203 Facsimile

n

114 Old Country Road Suite 300

Mineola, New York 11501 516-620-1700


n

170 Hamilton Street Suite 210

White Plains, New York 10601 914-290-6430


n

www.hrrvlaw.com

© 2012 Havkins Rosenfeld Ritzert & Varriale, LLP

Appellate Division, Second Department Affirms Dismissal of Catastrophic Brain Injury CaseKalafatis v. Royal Waste Services, et alAppellate Division, Second Department2012 Slip Op 02603May 8, 2012

The Appellate Division, Second Department, without hearing any oral argument, affirmed an award of summary judgment to our clients, Francisco Meza, a truck

driver, and his employer, Royal Waste Services, in a Kings County case with poten-tially catastrophic damages. The Supreme Court had granted the plaintiff’s motion for reargument of the clients’ motion for summary judgment and, upon reargument, adhered to its decision dismissing the case against the clients.

A Royal Waste Services truck driven by Meza collided with a stolen vehicle in which the plaintiff was a passenger. Meza entered an intersection with a steady green light and, as he did so, the stolen vehicle, which was speeding and had gone through several red lights, including that at the subject intersection, collided with the truck. As a result of the incident, the plaintiff sustained brain damage and his mother brought the action on his behalf.

Meza admitted that he did not look to his left when he entered the intersection, which, the plaintiff claimed, raised an issue of fact regarding whether he would have seen the stolen vehicle approaching from his left, thereby allowing him the opportunity to avoid the collision. However, the Appellate Division, Second De-partment found that the negligence of the driver of the stolen vehicle was the sole proximate cause of the incident. Therefore, the Appellate Division, the Supreme Court properly adhered to its original determination on reargument.

Since a finding of even 1 percent liability on the part of the clients could have re-sulted in an astronomical damages award given the injuries sustained by the plain-tiff, this was a significant victory.

Contact

Amol N. Christian represented the defendants.

Amol N. Christian: 516-620-1703 or [email protected]




Documents

Nightclub Patron Held to Be Third- Party Beneficiary … · Christopher G. Wosleger ... Nightclub Patron Held to Be Third-Party Beneficiary of Contract Between Security Company and