"Ongoing Storm" Rules for the Northeast (Connecticut, Massachusetts, New Jersey, New York & Rhode Island)
February 22, 2021 —
Angeline Ioannou, Kenneth Walton, Colin Hackett, Gregory Katz & Lauren Motola-Davis - Lewis BrisboisThe winter storm that recently brought several feet of snow to the Northeast signaled that we are, indeed, in the middle of winter. Moreover, our nation’s favorite groundhog, Punxsutawney Phil, saw his shadow on Groundhog Day this year, indicating that winter will be with us for six more weeks. As we move through the remainder of this snowy season, it is important for businesses to understand their legal obligations concerning snow removal and the defenses that are available to them in the event that an injury occurs on their premises. This alert summarizes the ongoing storm rules in Connecticut, Massachusetts, New Jersey, New York, and Rhode Island, and analyzes property owners’ snow removal responsibilities as well as related premises liability issues under these states’ laws.
Connecticut
It is well settled in Connecticut that, in the absence of unusual circumstances, in fulfilling their duty to invitees on their property, property owners may wait a reasonable time after the conclusion of a storm to perform ice and snow removal from outside walkways and steps. Kraus v. Newton, 211 Conn. 191, 197-198 (1989). A property owner’s duty to perform reasonable snow and ice removal of outside walkways does not arise until after a reasonable period of time has passed after a storm ends. Umsteadt v. G.R. Realty, 123 Conn. App. 73, 83 (2010). The ongoing storm doctrine does not apply, however, if the defective condition arises from preexisting ice or snow, and not from the ongoing storm. Whether the alleged defective condition was caused by preexisting ice or snow and whether a storm has concluded are both questions of fact that may be decided by a jury. Kraus at 197-198.
Reprinted courtesy of
Angeline Ioannou, Lewis Brisbois,
Kenneth Walton, Lewis Brisbois,
Colin Hackett, Lewis Brisbois,
Gregory Katz, Lewis Brisbois and
Lauren Motola-Davis, Lewis Brisbois
Ms. Ioannou may be contacted at Angeline.Ioannou@lewisbrisbois.com
Mr. Walton may be contacted at Ken.Walton@lewisbrisbois.com
Mr. Hackett may be contacted at Colin.Hackett@lewisbrisbois.com
Mr. Katz may be contacted at Greg.Katz@lewisbrisbois.com
Ms. Motola-Davis may be contacted at Lauren.MotolaDavis@lewisbrisbois.com
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Construction Litigation Roundup: “Who Needs Them”
August 28, 2023 —
Daniel Lund III - LexologyWho needs them?
So argued a surety pursuing recovery under its general agreement of indemnity when the indemnitors urged a Louisiana federal court to dismiss the surety’s complaint for failure to join various allegedly required parties as defendants in the litigation.
As part of its court action, the surety moved for preliminary injunction to enforce its collateral security rights. In response thereto, the indemnitors informed the court that if the injunction were to be granted, the indemnitors would “be forced to sell assets that are encumbered by security interests senior to those held by” the surety. In connection therewith, the indemnitors demanded that the other creditors be joined in the action or the lawsuit dismissed. The indemnitors also urged that the public project owner be joined as a party because the surety was seeking proceeds from the project that were still in the possession of the project owner.
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
Pensacola Bridge Repair Plan Grows as Inspectors Uncover More Damage
September 28, 2020 —
Jim Parsons - Engineering News-RecordWith a still-growing list of repairs needed to restore the barge-damaged Pensacola Bay Bridge, the Florida Dept. of Transportation has yet to determine a timeline for completing repairs. But assessments by the agency’s inspectors indicate that impacts from several Skanska-owned construction barges that unmoored during Hurricane Sally not only resulted in five irreparable spans, as previously reported, but at least two more that will require partial replacement.
Jim Parsons, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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Coverage for Faulty Workmanship Found In South Dakota
October 11, 2017 —
Tred R. Eyerly - Insurance Law HawaiiThe South Dakota Supreme Court found coverage in favor of the general contractor who was sued for alleged faulty workmanship. Owners Ins. Co. v. Tibke Constr., Inc., 2017 S.D. LEXIS 106 (S.D. Aug. 23, 2017).
The homeowners hired Tibke Construction Inc. as general contractor to build a new house. Tibke hired Jerry's Excavating Inc. as a subcontractor to prepare the soil and perform excavation work. After the project was completed, the homeowners sued Tibke and Jerry's Excavating for negligent construction and breach of contract. The homeowners alleged that Jerry's Excavating failed to conduct soil-compaction testing before construction. They alleged that the home was built upon highly expansive soils, resulting in damage to the home by "excessive settlement, cracking, structural unsoundness and other damages." The complaint further alleged that damages existed only on portions of the home not worked on by Jerry's Excavating.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Ambush Elections are Here—Are You Ready?
May 07, 2015 —
Craig Martin – Construction Contractor AdvisorOn April 14, 2015, the National Labor Relations Board’s new election rule went into effect. The new rule, which shortens the time frame for union elections, will make it easier for unions to organize. Employers must get prepared now, not when they hear about an election. As the NLRB Members who dissented from the final rule noted:
"The Final Rule has become the Mount Everest of regulations: Massive in scale and unforgiving in its effect. Very few people will have the endurance to read the Final Rule in its entirety."
Here are some highlights of the new rule:
- Within 2 business days after service of the Notice of the Pre-Election Hearing, the employer must post a Notice of Petition for Election. The employer must also distribute the notice via e-mail if the employer customarily communicates with employees via e-mail.
- A Pre-Election hearing will be scheduled within 8 days from the Notice.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
Contract Provisions That Help Manage Risk on Long-Term Projects
June 29, 2020 —
Jason Lambert - Construction ExecutiveFew things can dampen the thrill and promise of a newly closed construction deal than the realization that it could quickly become a losing proposition for the contractor depending on economic and other conditions. In an era of instant information, constantly adjusting markets and political extremes, projects that start under one set of assumptions or conditions can occur or conclude under much different ones. While no one has a crystal ball, there are contractual provisions that can provide clear guidance in the face of many “what ifs” that can arise in construction.
One of the chief concerns a contractor should have in a project lasting more than a few months is what impact price increases will have on the profitability of the job. On a true cost-plus project, this may be of little concern, but on any project with a limitation on costs or a guaranteed maximum price, contractors should insist on a procedure to revisit the limitation or price if certain conditions change.
This can be as simple as allowing the contractor to receive an upward adjustment in the price if costs increase by more than a certain percentage. It can be as complicated as requiring multiple new bids and disclosures to the property owner, architect or project manager and allowing approval of new suppliers or subcontractors to limit cost increases to the cheapest increase. The protection—and certainty—to the contractor though, comes from having a process in the contract to address cost increases, whether it is simple or complex.
Reprinted courtesy of
Jason Lambert, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Lambert may be contacted at
Jason.lambert@dinsmore.com
Stucco Contractor Trying to Limit Communication in Construction Defect Case
November 13, 2013 —
CDJ STAFFSouth Carolina State Plastering claimed in the South Carolina Court of Appeals that communication between attorneys and residents of a retirement community could undermine the judgment in the case. Residents of Sun City had filed a class action lawsuit over problems with stucco in the community.
Phillip Segul, the plaintiffs’ attorney, noted that plasterer was “directly communicating with the class members and getting them to sign opt-outs and releases of their claims,” although this was something that Everett Kendall, the plasterer’s attorney denied.
The lawsuit has been grinding along for six years. Some residents fear they won’t outlive the construction defect lawsuit.
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Crane Firm Pulled Off NYC Projects Following Multiple Incidents
October 07, 2019 —
Jeff Rubenstone - Engineering News-RecordFollowing a partial crane collapse at a site on Manhattan’s Lower East Side and a fatality in April on a jobsite in lower Manhattan, the New York City Dept. of Buildings announced on Aug. 12 that it is suspending United Crane & Rigging’s work on 21 construction sites across the city.
Jeff Rubenstone, Engineering News-Record
Mr. Rubenstone may be contacted at rubenstonej@enr.com
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