Friday, June 11, 2021

Applications Being Accepted for Federal Middle District Judgeship Opening


Senators Casey and Toomey recently announced that they are soliciting applications to fill a Federal Middle District Judge position.  If you are interested, here is the LINK June 8, 2021 Press Release which contains more information on how to apply.  The deadline for applications is July 8, 2021.

Thursday, June 10, 2021

Court Rules That Reasonableness Standard of Hills and Ridges Doctrine Also Applies When Snow Falls From a Roof

In the case of Sylvester v. Alvin Ziegler Snow Removal, No. 2933-CV-2019 (C.P. Monroe Co. April 6, 2021 Zulick, J.), the court granted Defendants’ Motion for Summary Judgment in a slip and fall case after finding that the Defendants’ failure to remove snow from roof tops during an ongoing snowstorm was not unreasonable.   According to the Opinion, the Plaintiff was allegedly injured by snowing fall off of a roof as he was leaving his place of employment.  

The record before the court indicated that the Defendants had entered into a contract with the owner of the property to remove snow from the premises.   


The Plaintiff filed suit in this matter alleging negligence against the Defendants for failing to clear snow from the roof. The Plaintiff was allegedly injured as he was leaving a building and snow that had accumulated on a roof during a severe snowstorm had fallen upon the Plaintiff.


The Defendants moved for summary judgment.   


The Plaintiff asserted that the hills and ridges doctrine, which afforded a landlord a reasonable amount of time to remove dangerous conditions caused by ice and snow, applied to walkways and not to snow falling on a roof.   


The court rejected this argument and found that the same reasonableness standard found under the doctrine applied whether the snow to be removed was on the ground or on the roof.   


The court also emphasized that this winter event involved a major snowstorm that dropped more than 20 inches of snow and had even made the roadways impassable.   The court rejected the Plaintiff’s argument that the Defendants should have worked longer to remove snow from the rooftops during this severe and ongoing snowstorm in order to prevent injury to the Plaintiff.


As noted above, summary judgment was granted in favor of the Defendants.   


Anyone wishing to review this decision may click this LINK.


Tuesday, June 8, 2021

Occurrence Rule under Statute of Limitations Applied in Legal Malpractice Suit


In the case of Keystone Custom Homes, Inc. v. Appel & Yost, LLP, No. 2015-07661-PL (C.P. Chester Co. Dec. 18, 2020 Tunnell, J.), the court, sitting without a jury, ruled in favor of the Defendant law firm in a legal malpractice claim.

Of note, the court found that the Plaintiff’s legal malpractice claim, in which it was alleged that the Defendants negligently prepared a public offering statement for them, was barred under the occurrence rule as the statute of limitations period had begun to run upon the happening of the alleged breach of duty, that is, when the Defendant prepared and provided them with an allegedly erroneous public offering statement back in 2007.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 4, 2021).

Friday, June 4, 2021

Pennsylvania Superior Court Affirms Granting of New Trial in Zero Award for Pain and Suffering Where Medical Expenses Awarded



In the case of Mazzie v. Lehigh Valley Hospital-Muhlenberg, No. 473 EDA 2020 (Pa. Super. April 16, 2021 Kunselman, J., Nichols, J., and Pellegrini, J.) (Op. by Nichols, J.), the court ruled that a trial court did not abuse its discretion in granting a Plaintiff a new trial limited to damages in her medical malpractice action after finding that the liability issues were fairly determined and were not intertwined with the damages issues.

The case arose out of a medical malpractice action following a laparoscopic surgery to repair multiple hernias. After the surgery, the Plaintiff allegedly suffered septic shock and required additional surgeries and treatment to safe her life.

The appellate court also found that the trial court had correctly granted the Plaintiff a new trial on damages for pain and suffering even though the jury entered a verdict for $0 on the Plaintiff’s non-economic damages claims. The court found that there was significant testimony and evidence to confirm the Plaintiff’s alleged pain and suffering to the point that the Plaintiff almost died following the treatment.

In another notable part of this opinion, the Court reviewed the validity of an expert's opinion where the expert did not use the words "to a reasonable degree of medical certainty" during his or her testimony.  The Court found that, viewing the expert's testimony as a whole, the testimony was sufficiently certain even though the magic words were not used.    

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 4, 2021).


PLEASE CONSIDER SCHEDULING YOUR MEDIATION WITH CUMMINS MEDIATION SERVICES

 

(570) 319-5899

DanCummins@CumminsLaw.net

Wednesday, June 2, 2021

Claims of Recklessness Dismissed in Garden Variety Rear End Accident Case


In the case of Castronuovo v. Schwartz, No. C-48-CV-2021-00660 (C.P. Northampt. Co. April 27, 2021 Baratta, J.), Judge Stephen G. Baratta of the Northampton County Court of Common Pleas sustained a Defendant’s Preliminary Objections with regards to allegations of recklessness asserted by a Plaintiff in a motor vehicle accident case. The Plaintiff was granted leave to amend.

According to the Opinion, this matter arose out of a rear-end motor vehicle accident. The defense asserted that the allegations in the Plaintiff’s Complaint contain facts that only amounted to ordinary negligence and did not make the threshold of outrageous, wanton, or reckless conduct necessary to support allegations of recklessness.

The court agreed and noted that the Plaintiff had alleged a “garden variety” rear-end collision. See Op. at p. 5.

In response, the Plaintiff asserted that the allegations were sufficiently specific to support a claim of recklessness. In support of this position, the Plaintiff relied upon Archibald v. Kemble, 971 A.2d 513 (Pa. Super. 2009), appeal denied, 989 A.2d 914 (Pa. 2010), for the proposition that recklessness is also known as willful and wanton misconduct and, as such, recklessness is a condition of the mind that may be averred generally pursuant to Pa. R.C.P. 1019(b).

Judge Baratta stated that the Plaintiff’s reliance upon Archibald was misplaced. The court emphasized that, in Archibald, the Pennsylvania Superior Court had vacated summary judgment in favor of the Defendant after finding that, even though the Plaintiff’s Complaint did not specifically alleged reckless, the Complaint did assert a factual predicate supporting a claim of recklessness, including allegations of intentional acts on the part of the Defendant. Judge Baratta stated that the Archibald court held that the Plaintiff did allege very specific facts which supported the claims of recklessness, and that, even though the Complaint sounded in general negligence, the court in Archibald noted that recklessness is a specific category of negligence.

Overall, Judge Baratta read the Archibald decision to hold that “recklessness must be pleaded by facts which support the claim, facts which establish wanton and willful conduct, facts beyond mere negligence, and facts indicating a state of mind that ‘is so far from a proper state of mind.’” Judge Baratta stated that “[c]learly, general negligence cannot establish recklessness” under Pennsylvania law. See Op. at 7.

Judge Baratta additionally rejected the Plaintiff’s claims that allegations of recklessness should be allowed so as to preclude a comparative negligence defense by the Defendant if reckless, wanton, or willful misconduct is found by the jury. The court rejected this theory by the Plaintiff by noting that the Plaintiff still must pled the facts to support allegations of wanton or willful misconduct before being able to assert claims of recklessness in a Complaint. Judge Baratta went on to state that “[c]learly, a common automobile accident, in which only balled, general negligence claims are raised, cannot support an allegation of recklessness.” See Op. at 8.

For these reasons, the court sustained a Defendant’s Preliminary Objections against the Plaintiff’s allegations of recklessness in this garden variety rear-end motor vehicle accident case. The court did allow the Plaintiff an opportunity to file an Amended Complaint if there are any additional facts to be pled to “correct this pleading defect.” However, if no Amended Complaint is filed by the Plaintiff, the allegations of recklessness will be considered to have been stricken with prejudice by operation of law.

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


I send thanks to Attorney Wendy R.S. O’Connor of the Allentown, PA office of Marshall Dennehey for bringing this case to my attention.