Articles Posted in Premises Liability

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Dr. Neugebauer also reanalyzed the Borak study, using six bands rather than seven,7 extending four miles from the landfill center, and concluded that Borak’s data also showed that the risk of ALL increased with proximity to the landfill.

Plaintiffs also relied on the affidavit of Dr. Bruce K. Bernard, an expert toxicologist and biostatistician. In order to determine the general plausibility of a cause-and-effect relationship between an increase in the observed frequency of childhood ALL and exposure to chemicals emanating from the landfill, Dr. Bernard analyzed Dr. Neugebauer’s findings using the evaluation scheme propounded by Sir Austin Bradford Hill, a well-known epidemiologist and biostatistician. Hill’s approach involves analysis of nine factors: (1) strength of association, (2) consistency, (3) specificity, (4) temporality, (5) biological gradient, (6) biological plausibility, (7) coherence, (8) experiment, and (9) analogy.

Dr. Bernard found that strength of association was clearly demonstrated by comparisons between Band 1 and Band 2 versus Band 4, showing a very significant relationship between [88 A.D.3d 392] the incidence of childhood ALL and proximity to the landfill. Dr. Bernard found that Neugebauer’s data showed internal consistency with regard to a causal relationship. He opined that the question of external reproducibility turned on the availability of other studies such as animal experimentation and epidemiological studies. Dr. Bernard opined that many of the chemicals known to have been dumped at and emanating from the landfill are well-known, potent human and animal toxicants, mutagens and carcinogens. Dr. Bernard noted that benzene is a leukemogen causing acute myelogenous leukemia and a known risk factor in multiple myeloma and ALL, all closely-related injury.

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This Court affirmed, rejecting the City’s argument that the scientific methodologies employed by plaintiffs’ experts were insufficient to establish that plaintiffs’ cancers were caused by exposure to substances emanating from the landfill.

After this Court granted leave to appeal, the Court of Appeals affirmed on the ground that the City’s motion had never been converted to one for summary judgment and plaintiffs, therefore, were not put on notice of their obligation to make a complete record and to come forward with any evidence that could possibly be considered. Noting that plaintiffs suggest that due to the equivocal procedural posture of this case, they have not had the opportunity to submit all of their evidence relevant to a determination of causation, the Court of Appeals held that the City is not now entitled to dismissal of plaintiffs’ complaints for failure to state a cause of action.

On or about October 12, 2007, the City filed a motion for summary judgment.2 Among other things, the City relied on a July 21, 2000 Department of Health Public Health Assessment and a June 1, 1993 Woodward–Clyde Baseline Risk Assessment pertaining to the landfill. The 2000 report discussed potential contaminant exposure pathways and the results of two epidemiological studies conducted by DOH’s Environmental Epidemiology Unit, a 1988 study of childhood leukemia and a 1994 DOH cancer incidence study. The 1988 study, a statistical comparison of the incidence of childhood leukemia among children in Bronx districts 4 and 6 during the period from 1974 through 1985, as compared to New York City as a whole, found “scant evidence” of an increased incidence of childhood leukemia in the community adjacent to the landfill. The 1994 DOH study contained the following statistically elevated findings: the annual incidence of lung cancer in women; the cumulative incidence of colon cancer and leukemias in men; and the cumulative incidence of kidney cancer among residents living closer to the cancer than further away. The authors of the study determined, however, that these personal injury findings did not present a pattern consistent with potential exposures from the landfill. While acknowledging that “one of the most well documented chemical exposures associated with leukemia is benzene, the authors concluded that there was no evidence of cancer patterns consistent with exposure to the landfill, and that exposure levels were likely too low to result in a detectable increase in cancer rates.

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These consolidated actions are for personal injury and wrongful deaths allegedly arising from plaintiffs’ exposure to hazardous substances emanating from the Pelham Bay landfill in the Bronx. On a previous appeal, affirming the denial of defendants’ motions to dismiss, inter alia, for failure to state a cause of action, we determined that plaintiffs’ expert evidence did not require that a hearing be held in accordance with Frye v. United States, ruling that neither the deductions of the expert epidemiologists and toxicologists, nor the methodologies employed by them, in reaching their conclusions are premised on the type of novel science implicating the concerns articulated in Frye. Defendants now move for summary judgment in all nine actions, asserting that the evidence fails to show an increased cancer incidence caused by hazardous chemicals emanating from the landfill. We disagree, and affirm the order appealed from.

The now inactive 81–acre Pelham Bay landfill is owned by the City and was operated by the Department of Sanitation (DOS) beginning in 1963 for the disposal of 2,600 tons of municipal solid waste per day. Over the years, surrounding residents complained about odors and the improper and illegal dumping of hazardous materials and industrial waste from corporations in the area. The landfill was ordered to close on December 31, 1978.

In March of 1985, the City commenced an action under the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 against 15 corporate defendants. The City claimed that the corporations had illegally disposed of industrial and chemical waste containing hazardous substances at the landfill, contaminating the groundwater and threatening drinking water supplies. As a result of the suit, the City was awarded millions of dollars for the costs incurred in remediating the site and for natural resource injury damages. In 1983, the landfill was classified as an inactive hazardous waste site, which means that a significant threat to the public health or environment exists, and that action is required.

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Although an insurer’s duty to defend its insured is determined by comparing the allegations of the complaint to the terms of the policy, an insurer may escape its duty to defend under the policy where it can be concluded as a matter of law that there is no possible factual or legal basis on which the insurer might eventually be held to be obligated to indemnify the insured under any provision of the injury insurance policy. Stated otherwise, even if the complaint triggers a duty to defend, that duty is not an interminable one, and will end if and when it is shown unequivocally that the damages alleged would not be covered by the policy.

The construction of terms and conditions of an insurance policy that are clear and unambiguous presents a question of law to be determined by the court when the only issue is whether the terms as stated in the policy apply to the facts. Moreover, where the provisions of the policy are clear and unambiguous, they must be given their plain and ordinary meaning, and courts should refrain from rewriting the agreement.

In this case, the underlying complaint alleges that TD’s accident took place on the sidewalk in front of the Premises. The policy at issue in this case clearly excludes claims arising out of a premises owned by an insured rented to others by an insured that is not an insured location. The only portion of the policy definition of insured location relevant here is residence premises, which the policy defines as a two, three or four family dwelling where you reside in at least one of the family units and which is shown as the residence premises in the Declarations. These provisions are unambiguous, and operate to require insured residency as described, as a condition of coverage. Thus, any coverage for the Prospers with respect to the underlying action is contingent upon their residence at the Premises.

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By letter dated March 4, 2005, TIC disclaimed coverage under the policy based on the exclusion for liability for bodily injury where the construction accident occurs in premises in which the insured does not reside. Notwithstanding the disclaimer, TIC appointed counsel to defend the Prospers in the underlying action, pending this court’s ruling on the propriety of the disclaimer.

TIC commenced this action on October 20, 2005. The complaint seeks a judgment declaring that TIC has no duty to defend or indemnify the Prospers in the underlying action based on the exclusion for bodily injury that occurs in a premises in which the insured does not reside.

On June 5, 2007, Joseph Prosper appeared for an examination before trial in this action. Mrs. Prosper has repeatedly failed to appear, and has been precluded from offering evidence in this matter.

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In this declaratory judgment action, TIC moves for an order granting it summary judgment declaring that it has no duty to defend or indemnify defendants Prospers in a personal injury action, in which the plaintiff alleges that she sustained injuries due to a defective sidewalk located in front of a dwelling owned by the Prospers.

This action seeks to resolve whether the Prospers are entitled to coverage under an insurance policy that TIC issued to them covering the subject dwelling. TIC contends that it is entitled to summary judgment because the policy issued to the Prospers excludes coverage for liability where the injury occurs in premises in which the insureds do not reside in one of the family units, and the Prospers did not reside in any such unit. The Prospers contend that they are entitled to coverage because the subject dwelling was their secondary residence.

TIC issued a Dwelling Package Policy to the Prospers under policy number DPP 2181042, effective August 30, 2003 to August 30, 2004. The address listed on the policy is 1301 Needham Avenue, Bronx, New York 10469, a three-family dwelling (the Premises).

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A man obtained personal injuries during the course of his employment, when he fell through the roof of the building to the floor 12 feet below. The premises are owned by the opponents. The court then granted the man’s motion for partial decision against the opponent on the issue of liability.

A jury trial as to damages was held and rendered a decision in favor of the man. The court ordered $100,000.00 for past pain and suffering, $200,000.00 for future pain and suffering over 25 years, $24,662.00 for past medical expenses, $330,000.00 for future medical expenses over 25 years, $163,870.00 for past loss of earnings and $1,892,300.00 for future loss of earnings.

The opponent’s requests to set aside the jury decision on the ground that the man’s attorney made improper comments during the trial are denied.

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This is the story of an incident that resulted in a personal injuryclaim from a commercial truck driver. The facts of the case are not being disputed by any of the parties involved. The truck driver drove his truck to the docks to deliver some cartons of merchandise to the railroad company. He unloaded the first crate and put it on the loading platform. He then stepped onto the loading platform and picked up the carton. After picking up the carton again, he stepped onto the pier floor. What he did not know was that the flooring was broken. When he stepped onto it, it broke further causing him to fall and sustain injury. There is no dispute that the injury in question was caused due to negligence on the part of the railroad company in maintaining its flooring.

The question arises in that the railroad company claims that the insurance company that covered the driver’s truck should cover the liability from this accident because the policy covers the entire truck delivery process including unloading the truck to the point where the goods are planned to go.

The insurance company that covered the truck agreed that if it was an act of negligence on behalf of the driver, then at that time, they would incur the liability for the accident. They maintain, however, that because the incident occurred because the floor of the pier was not maintained by the railroad company in safe standards that the liability rests solely with the railroad company and not in any part with them. They cited several precedent cases that confirm their opinion. The court had previously found that the insurance company covering the truck would cover the liability. However, on appeal, it was determined that the insurance company for the truck was not responsible and that liability rests entirely on the railroad company for failing to maintain a safe working environment. The justices unanimously reversed and vacated the prior decision based on the law and on the facts. This means that the victim must sue the railroad company to receive compensation from the accident.

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A motion for the dismissal of the verified complaint was filed by the defendants, who are insurance companies. The plaintiffs were limited partnership and two other corporations; one is a development corporation while the other is a management firm.

A suit for personal injuries were filed against the plaintiffs by a private individual who sustained injuries when he fell from the stairway of a building owned by the plaintiffs and such person was a tenant in the said building. As such, the plaintiffs are now claiming insurance from the defendants pending the personal injury case filed by the tenant against the plaintiffs.

The defendants issued an insurance policy in favor of the plaintiffs for one year, which included commercial general liability. The terms of the policy include the requirement of the insured to inform the defendants, as soon as practicable, of any occurrence that would result to a claim against the insured. This was the situation that happened when the tenant fell off a stairway of the building owned by the plaintiffs during the term of the policy where it may result to a claim against the insured. The defendants were notified of the accident of the tenant. Two witnesses testified to the occurrence of the accident; one was the building superintendent and the other was the property manager. No incident report was made in relation to the accident during that time.

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On 9 January 2009, plaintiffs sought a summary judgment declaring that defendant, a Surety Company, was obligated to defend and indemnify them in the underlying personal injury action in the Supreme Court of Bronx County.

On 5 May 2009, the court granted that portion of plaintiff’s motion seeking to declare that defendant was obligated to defend them in the underlying personal injury action, but that portion of the motion seeking a declaration that defendant was obligated to indemnify plaintiffs was denied as premature; the court severed that portion of plaintiffs’ earlier motion seeking reimbursement for defense costs already expended, and referred the matter to a Special Referee to hear and report with recommendations regarding such reimbursement.

Thereafter, plaintiffs move, for leave to renew their motion.

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