Tuesday, March 21, 2023

Defense Verdict Upheld In Left Turn Motor Vehicle Accident Case (Non-Precedential)

In the case of Wilmer v. Bethman, No. 654 EDA 2022 (Pa. Super. Feb. 21, 2023 Panella, P.J., Bender, P.J.E., and Sullivan, J.) (Op. by Sullivan, J.) (non-precedential), the Pennsylvania Superior Court addressed a Plaintiff’s request a new trial after the jury entered a defense verdict in a case where the Defendant made a left hand turn across the path of the Plaintiff’s vehicle during the course of a motor vehicle accident.

In this decision, the court provided a detailed recitation as to the law applicable in left turn motor vehicle accident cases.

The court also ruled that the trial court did not err when it denied the Plaintiff’s Motion for Judgment Notwithstanding the Verdict and/or when it denied the Plaintiff’s request for a new trial where the Plaintiff did not present evidence as to what the distance was between the two vehicles when the Defendant commenced the left hand turn. 

As such, the Superior Court agreed that the trial evidence was sufficient to permit the jury to conclude that the Defendant acted reasonably and waited until she thought it was safe to proceed and was, therefore, not negligent.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.

Source: “Fastcase Pennsylvania Civil Law Case Alerts Provided Through the Pennsylvania Bar Association” (Feb. 23, 2023).

Source of image:  Photo by Krzysztof Hepner on www.unsplash.com.

Monday, March 20, 2023

Judge Mannion of Federal Middle District Addresses Motion for Summary Judgment in a Skiing Accident Case

In the case of Mattei v. Tuthill Corp., No. 3:19-CV-2196 (M.D. Pa. Feb. 28, 2023 Mannion, J.), the court denied a Defendant’s Motion for Summary Judgment in a case arising out of a skiing accident. 
As noted by Judge Malachy E. Mannion at the outset of his Opinion, this case raised questions as to the inherent risks of downhill skiing, the enforceability of releases on lift tickets, and the legal sufficiency of the facts alleged by the Plaintiff relative to the Defendant's alleged gross negligence and recklessness.

The court reviewed the terms of the Pennsylvania Skier's Responsibility Act and ruled that the “no duty” rule relieving ski resorts of liability under the Act for common and inherent risk attendant with skiing was in dispute in this matter because it was unclear as to whether the Plaintiff was skiing on or off a designated trail at the Blue Mountain Resort in the Poconos.  

Judge Malachy E. Mannion additionally noted that there was other conflicting evidence as to whether the hazard at issue was perceptible to skiers.

The court found that whether a certain danger is perceptible to skiers is generally relevant to the question of whether that risk is inherent to downhill skiing.

The court additionally found that the Defendant had not proven that the Plaintiff’s negligence claims were barred by the exculpatory release contained on the back of the lift ticket.

Judge Mannion noted that, in this case, the lift ticket was an exemplar. There was no other proof offered beyond a disputed inference that the Plaintiff actually received a lift ticket.

Given that the court also found that there were genuine issues of material fact relative to the Defendant’s alleged gross negligence and reckless involving an alleged conscious disregard of the risk of harm allegedly posed by an alleged five foot ditch on the ski trail, summary judgment was denied.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE

I send thanks to Attorney James M. Beck of the Philadelphia law office of the Reed Smith law firm for bringing this case to my attention.

Source of image:  Photo by Mati Mango on www.pexels.com.

Thursday, March 16, 2023

Judge Nealon of Lackawanna County Addresses Whether Summary Judgment is Appropriate Sanction for Alleged Spoliation

In the case of McClafferty v. Scranton Electric Heating, No. 2019-CIVIL-2216 (C.P. Lacka. Co. Aug. 5, 2023 Nealon, J.), the court addressed issues with regards to the alleged spoliation of evidence.

A carpenter instituted this personal injury action against a subcontractor after he was burned in a fire caused by a gas tank provided by the subcontractor at the work site, and the subcontractor joined the gas tank supplier as an Additional Defendant. 

The gas tank supplier filed a Motion for Summary Judgment seeking to dismiss the joinder action based upon the subcontractor’s alleged spoliation of evidence in failing to preserve the subject gas tank.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon confirmed that, in determining whether a sanction is warranted for the spoliation of evidence, the court shoulder consider: 
(1) the degree of fault of the party who altered or destroyed the evidence; 

(2) the degree of prejudice suffered by the opposing party; and 

(3) the availability of a lesser sanction that will protect the opposing party’s rights and defer future similar conduct. 

The court noted that the first prong, which addresses the fault of the spoliating party, requires consideration of the offending party’s duty or responsibility to preserve the relevant evidence or lack of any such duty. 

Judge Nealon also noted that the destruction of potentially relevant evidence determines whether and what type of sanction should be imposed, not whether spoliation occurred.

Since the subcontractor’s vice-president testified that it was “more than likely” that the gas tank “was returned” to the supplier after the fire, genuine issues of material fact existed as to whether the subcontractor could be characterized as the spoliator of the gas tank. 

The court noted that the entry of summary judgment is the most extreme sanction for spoliation, and, at a minimum, requires proof that the party actually altered or destroyed the evidence, or authorized or directed its destruction or alteration. 

Judge Nealon ultimately ruled that, although the presiding trial judge would later determine whether an adverse inference instruction under Pa. SSJI (Civ) §5.60 (5th Ed.) is warranted under the circumstances presented, at this stage of the matter, the entry of summary judgment as a spoliation sanction was found to be inappropriate by the court.

Anyone wishing to review a copy of this decision may click this LINK.

Wednesday, March 15, 2023

Plaintiff's Personal Injury Claim Dismissed After Plaintiff Presented False Documents and False Testimony To the Court

In the case Brown v. Kimsey, No. 2:22-CV-03441-MAK (E.D. Pa. Feb. 10, 2023 Kearney, J.), the court relied upon the applicable factors identified in the case of Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984), to dismiss an automobile accident personal injury case being pursued by a Plaintiff who was originally represented but who then became a pro se Plaintiff after the attorney withdrew. The case was dismissed based upon the court’s finding that the Plaintiff had presented altered documents and had a friend falsely claim that she was the Plaintiff’s wife in an effort to secure a recovery on a loss of consortium claim.

Judge Kearney started off his Opinion by stating, “Truth-seeking in our adversary system of resolving disputes depends on zealous advocacy of grounded legal arguments based on facts. Facts are facts; they are not theories or hopes. Misrepresentation of facts are not permitted in court. Parties and their lawyers who present knowing false facts to the court cannot recover in the public’s courthouse.”  See Op. at 1.

As part of the support for the dismissal of the claim, the court noted that the Plaintiff sat by during depositions while his female friend lied under oath that she was the Plaintiff’s wife. That friend then repeatedly invoked her Fifth Amendment right against self-incrimination when she realized that the opposing party had uncovered her lies.  Thereafter, the friend, who purported to be the Plaintiff’s wife, quickly dropped her false of loss of consortium claim when the opposing party would not pay her based upon those misrepresentations.

In the end, based upon this evidence, and other evidence, the court dismissed the case after finding that the pro se Plaintiff had committed a fraud upon the court.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's Order can be viewed HERE.

I send thanks to Attorney Thomas Butler of the Flourtown, PA office of Butler Law for bringing this case to my attention.

Source of image:  Phot by Brett Jordan on www.pexels.com.

Tuesday, March 14, 2023

Northumberland Court of Common Pleas Judges Cites to Spencer v. Johnson Dicta on Fair Share Act as Not Dicta

Definition of Dicta:

"A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential."

Black's Law Dictionary 1177 (9th ed. 2009).

In the case of Tucchi v. Carroll, No. CV-2018-1794 (C.P. Northumb. Co. Jan. 24, 2023 Saylor, S.J.), a trial court judge addressed a Defendant's post-trial motions following the entry of a jury verdict in favor of the Plaintiff against three (3) Defendants in a personal injury civil litigation matter.

In this case, the moving Defendant argued that the verdict against all three (3) Defendants for the total amount awarded should be stricken under the Fair Share Act.  This position was opposed by the Plaintiff.

In an Order only, Senior Judge Charles H. Saylor, sitting in the Northumberland County Court of Common Pleas, ruled that, pursuant to Spencer v. Johnson, 249 A.3d 529, 559 (Pa. Super. 2021), that the Fair Share Act was inapplicable given that the minor Plaintiff in this matter was not found to be contributorily negligent by the Plaintiff or, in other words, was an innocent Plaintiff.

In a footnote in his Order, the judge noted that the Spencer decision “was a precedential holding of the Superior Court after an analysis of the Fair Share Act, and not “dicta” as contended by Defendant Carroll.”

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Stephen A. Seach of the Seach Law Offices in Sugarloaf, PA for bringing this case to my attention.

For more cases and articles regarding the Fair Share Act here on Tort Talk, please click HERE.

Monday, March 13, 2023

Defendant's Request to Amend Pleadings to Add Crossclaims on the Eve of Trial Denied

In the case of Reynolds Iron Works, Inc. v. Lundy Constr., Co. Inc., No. 20-00, 730 (C.P. Lyc. Co. Jan. 25, 2023 Carlucci, J.), the court denied a Defendant’s Motion for Leave to file new crossclaims after finding that the Defendant had waited too long to do so in this case, which was already scheduled for trial.

The court noted that, granting the Defendant’s motion would likely leave to prejudice to the other parties under circumstances in which a continuance also might not serve to remedy that prejudice.

This matte arose out of a civil litigation involving a contractor dispute regarding the money allegedly owed on a subcontract.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 28, 2023).

Friday, March 10, 2023

ARTICLE: The COVID-19 Pandemic and Its Impact on the Law


Here is a LINK to my article published in the Pennsylvania Bar Association's March/April 2023 issue of The Pennsylvania Lawyer entitled "The COVID-19 Pandemic and Its Impact on the Law."

The article outlines the changes in Pennsylvania law and litigation as a result of the pandemic, some of which changes appear to be here to stay.

I send thanks to Patricia Graybill, the Editor of The Pennsylvania Lawyer magazine for selecting this article for publication.