Monday, March 18, 2024

Superior Court Confirms That, At Times, Plaintiff Can Prove Obvious Injuries Without Medical Expert


In a decision marked as "Non-Precedential" in the case of Kent v. Williams, No. 1855 EDA 2023 (Pa. Super. Feb. 13, 2024 Murray, J., Lazarus, J., and Stevens, P.J.E.) (Op. by Murray, J.), the Pennsylvania Superior Court reversed the entry of a nonsuit by a trial court in a fall down case.

According to the Opinion, the Plaintiff fell while on a ladder.  The Plaintiff sued the Defendant for not properly securing the ladder and/or providing a defective ladder.    

In this case, the Superior Court noted that a compulsory nonsuit cannot be entered prior to trial but can be treated as an entry of summary judgment by the trial court on appeal.

The appellate court additionally ruled in this case that a medical expert is not necessary to testify as to those types of injuries that may fall within the common experience and understanding of lay people on a jury, such as certain injuries that may result from a fall-down event where, as here, the Plaintiff fell 15 feet down from a ladder and landed on the surface below and allegedly sustained immediate injuries.

The court otherwise ruled that a personal injury Plaintiff is competent to testify as to his or her pain and suffering.

The appellate court additionally found that the trial court had erred in excluding the Plaintiff’s medical records entirely as hearsay. The Superior Court noted that, while some medical records or portions of records may indeed be hearsay, other portions may contain statements made for medical diagnosis which would fall under an exception to the hearsay rule. The trial court was ordered to consider each medical record individually on remand.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.


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


Source of image:  Photo by Raphael Brasileiro on www.pexels.com.

Thursday, March 14, 2024

Multi-Million Dollar Jury Verdict in Construction Case Deconstructed by Superior Court (Non-Precedential)


In the non-precedential case of D’Amico v. Covanta Holding Corp., 692 EDA 2023 (Pa. Super. Feb. 28, 2024 Lazarus, J., Panella, P.J.E., Colins, J.)(Op. by Colins, J.), the Pennsylvania Superior Court ruled that a new trial should be granted in a construction injury case in which the jury had awarded $6.4 million to the Plaintiff.

The Pennsylvania Superior Court held that the trial court’s jury charge improperly omitted an instruction on a key liability issue, rendering the jury instructions misleading and inaccurate.

More specifically, the Superior Court ruled that the trial court’s jury charge completely omitted any instruction on the issue on which the Defendant had sought an instruction, that is, on the issue whether retention of some authority over safety and enforcement of safety requirements can constitute the kind of retention of control sufficient to find liability under Pennsylvania law.  The appellate court found that this omission by the trial court was an error of law on the central liability issue in the case.

As such, the case was remanded for a new trial.

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


Source: “PA. Appeals Court Tosses $6.4 M judgment based on faulty jury instruction,” by Aleeza Furman. Pennsylvania Law Weekly (Feb. 29, 2024)

Wednesday, March 13, 2024

Judge Nealon of Lackawanna County Outlines Law Regarding Use of Admissible Evidence or Demonstratives During Opening Statements


In the case of Webb v. Scranton Quincy Hospital Company, LLC, No. 2021-CV-4073 (Lacka. Co. March 8, 2024 Nealon, J.), Judge Terrence R. Nealon provided a thorough analysis of the law applicable to the reference to admissible evidence during the course of an Opening Statement at a civil litigation trial.

As confirmed by Judge Nealon's Opinion, there is a dearth of precedent on this common issue.  As such, Judge Nealon's Opinion in this Webb v. Scranton Quincy Hospital Company case is likely to become the go-to decision for the applicable law regarding the use of demonstratives during an Opening Statement at a civil litigation trial.

In this medical malpractice case, the Plaintiff filed a Motion In Limine seeking leave of court to utilize admissible excerpts of video tape depositions of unidentified defense witnesses during the course of the Opening Statement to be presented by Plaintiff’s counsel.

Judge Terrence R. Nealon
Lackawanna County


After reviewing the sparse law on the issue, which, generally speaking, allows, under the discretion of the trial court, the reference and showing of admissible evidence during the course of an Opening Statement, Judge Nealon ruled that, since the video deposition testimony of parties, their officers, directors, managing agents, and designated witnesses, and non-party medical witnesses and expert witnesses “may be used against any party” at trial “for any purpose” pursuant to Pa. R.C.P. 4017.1(g) and 4020(a)(2) and (5), “any part or all” of the video depositions of those types of witnesses may be shown to the jury during an opening statement to the extent that those excerpts from the video depositions are admissible at trial.

The court ordered the Plaintiff to identify which portions of what video deposition they intend to utilize during the course of the Opening Statement so that the opposing party could assert any reserved evidentiary objections to those excerpts so that any required rulings may be made prior to the Opening Statement.

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

Commonwealth Court of Pennsylvania Addresses Storm Water Negligence Issues


In the case of Howarth v. Falls Township, No. 447 C.P. 2021 (Pa. Cmwlth. Feb. 14, 2024 Covey, J, Wallace, J., and Leavitt, S.J.) (Op. by Leavitt, S.J.), the Pennsylvania Commonwealth Court reversed trial court’s granting of a Motion for Summary Judgment in a municipal storm water negligence/storm water management statute case.

In this case, arising in Wyoming County, the trial court had granted summary judgment to the township in a case in which the Plaintiff landowner had asserted that the township’s installation of a culvert under a road adjacent to the Plaintiff’s property constituted an alteration of land that triggered the requirements of the Storm Water Management Act.

The Plaintiff additionally asserted on appeal that the trial court had erred in holding that the township’s creation of an artificial channel to discharge water onto his property did not state a common law negligence claim, which is the first step in pursuing any claim under the Political Subdivision Tort Claims Act.

As noted, the appellate court reversed the trial court’s decision in this case.

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

I send thanks to Attorney Joseph G. Price of the Dougherty Leventhal & Price law firm in Moosic, PA for bringing this case to my attention.


Source of image:  Photo by Genaro Servin on www.pexels.com.

Monday, March 11, 2024

Pennsylvania Supreme Court To Review the Continuing Validity of Statutory Cap On Damages Allowed Against State Agencies

The Pennsylvania Supreme Court has agreed to review a challenge by a Plaintiff to the $250,0000 statutory cap on damages allowed against state agencies.

The Court will hear the appeal in the case of Freilich v. SEPTA.  Here is a LINK to previous Tort Talk posts covering the Freilich case.

The lower courts in this case have rejected the challenge to the statutory caps but have expressed concerns about the fairness of the cap.

Source:  "Pa. High Court Agrees to Take Up Challenge to State Damages Cap" by Aleeza Furman of The Legal Intelligencer  (March 11, 2024).

ARTICLE: The Law on Two Wheels: Bicycle Law in Pennsylvania


Here is a LINK to a copy of my article entitled "The Law on Two Wheels:  Bicycle Law in Pennyslvania" which was published as the cover article for the March/April 2024 edition of The Pennsylvania Lawyer magazine which is published by the Pennsylvania Bar Association.

I send thanks to the Editor, Patricia Graybill, for choosing this piece for publication and for selecting it as a cover article for this edition of the magazine.  

Proud to note that this is the 10th article of mine that has been published in The Pennsylvania Lawyer Magazine.  

Overall, I have published over 190 articles in a variety of other legal newspapers, magazines and Law Reviews all covering different civil litigation topics, trends, and tips.  Over the years, I have also created and presented 67 CLE seminars on civil litigation topics and practice tips.







Friday, March 8, 2024

ARTICLE: Pa. High Court Shows Continuing Signs of Moderation With Regular Use Exclusion Holding

The below article of mine was published by the Pennsylvania Law Weekly on February 29, 2024 and is republished here with permission.

Daniel E. Cummins
Cummins Law













Pa. High Court Shows Continuing Signs of Moderation With Regular Use Exclusion Holding

February 29, 2024

By Daniel E. Cummins 

On Jan. 29, the Pennsylvania Supreme Court issued its long-awaited and much anticipated decision in the regular use exclusion case of Rush v. Erie Insurance Exchange, No. 77 MAP 2022 (Pa. Jan. 29, 2024)(Maj. Op. by Donohue, J.)(Concurring Op. by Wecht, J.) and, in doing so, seemed to signal a possible continuing movement away from its previous penchant for advancing plaintiffs’ causes in personal injury matters and toward a more reasoned, moderate approach to civil litigation questions of law.

Over the past five years or so, the Pennsylvania Supreme Court had handed down decision after decision, along with important civil litigation rule changes, that all largely advanced plaintiffs’ abilities to recover more and more compensation in a wider variety of circumstances.

More specifically, the Pennsylvania Supreme Court allowed for more liberal venue Rules of Civil Procedure for medical malpractice actions and also issued rules allowing for increased recoveries on appeals from personal injury arbitration proceedings. The court additionally issued decisions that seemed to relax venue rules for internet-based defamation claims (Fox v. Smith) and other types of personal injury claims. The Pennsylvania Supreme Court also issued decisions that expanded the plaintiff’s ability to recover from governmental entities (Cagey v. PennDOT and Balentine v. Chester Water Authority) and automobile insurance carriers (Gallagher v. Geico).

More recently, however, in 2023 the Supreme Court began to show signs of moderation with its decisions in the civil litigation arena. In the case of Erie Insurance Exchange v. Mione, 289 A.3d 525 (Pa. Feb. 15, 2023), the Pennsylvania Supreme Court, without acknowledging that it was doing so, stepped significantly back from its previous effort in the Gallagher v. Geico case to eradicate the household exclusion found in automobile insurance policies as void and unenforceable across the board. In Mione, the court rejected the argument by the plaintiff that the Gallagher decision should be read as having served to invalidate the exclusion in all cases in Pennsylvania.

In another recent decision evidencing moderation on the part of the court, in the case of first impression of Franks v. State Farm Mutual Automobile Insurance, 292 A.3d 866 (Pa. April 19, 2023) (Op. by Mundy, J.), the court issued a decision that favored insurance carriers by ruling that the removal of a vehicle from a multiple motor vehicle insurance policy, in which stacked coverage had been previously waived through a waiver form executed by the insured, did not require the insurance carrier to secure another written waiver of stacked coverage from the insured under Section 1738(c).

Now, with its January, 2024 decision in the case of Rush, the Pennsylvania Supreme Court has ruled that, as presented in this case, the regular use exclusion contained in motor vehicle insurance policies does not violate the express language of Pennsylvania’s Motor Vehicle Financial Responsibility Law (MVFRL).

The plaintiff in Rush was a police officer who was injured in a motor vehicle accident while driving his police vehicle at work. The plaintiff recovered the liability limits from the tortfeasor’s policy as well as the UIM limits that were available on the police vehicle.  

The plaintiff then sought to obtain additional recoveries from the Erie Insurance policies that covered his personal vehicles at home. Erie Insurance relied upon a regular use exclusion contained in the policy that covered the plaintiff’s personal vehicles to deny coverage on the additional UIM claim.

The trial court and the Pennsylvania Superior Court had ruled, in part, that the regular use exclusion violated the provisions of the MVFRL, and in particular, the terms of 75 Pa.C.S.A. Section 1731.  

More specifically, the lower courts had held that the regular use exclusion conflicted with the language of Section 1731′s mandate requiring the provision of UIM coverage to insureds in that the exclusion limited the scope of the coverage provided by Section 1731 by precluding coverage if an insured is injured while using a motor vehicle that the insured regularly used but did not own.

As noted, in its Rush decision, the Pennsylvania Supreme Court reversed the lower courts’ decisions and upheld the validity and enforceability of the regular use exclusion.

In so ruling, unlike what it did in its Gallagher v. Geico decision on the validity of the household exclusion, the Pennsylvania Supreme Court pointed to prior decisions it had rendered in which it had repeatedly upheld the validity of the regular use exclusion. The court found the plaintiff’s arguments in this Rush case to be a mere recitation of at least one of the same arguments that had been previously rejected by the court in its prior decisions relative to the validity of the regular use exclusion.

The Pennsylvania Supreme Court rejected the plaintiff’s argument that the MVFRL required that UIM coverage must be provided in all circumstances regardless of which vehicle the injured party was located in at the time of the accident. The court noted that, to accept such an argument would render all exclusions invalid.  

The Supreme Court also rejected the plaintiff’s reliance upon the Pennsylvania Supreme Court’s decision in Gallagher v. Geico for the proposition that the regular use exclusion should be eradicated across the board just as the household exclusion had been eradicated in Gallagher as a allowing for a de facto waiver of stacked coverage when the MVFRL instead required the carrier to secure a written waiver of coverage from its insureds.

In this Rush v. Erie Insurance Exchange case, the Pennsylvania Supreme Court confirmed that it had previously clarified and narrowly limited its Gallagher decision in its more recent decision in the case of Erie Insurance Exchange v. Mione.  

Here, in Rush v. Erie Insurance Exchange, the Supreme Court ruled that “if the MVFRL does not require that UIM coverage follow the insured in all circumstances, then the MVFRL cannot be read to prohibit exclusions from UIM coverage.” As such, the court ruled that the terms of the UIM insurance contract between the parties still controlled relative to the scope of the UIM coverage available, or not available, and that, therefore, the regular use exclusion remained enforceable.  

The language utilized by the Pennsylvania Supreme Court seemed to indicate that it had heard the criticisms of some commentators regarding the apparent judicial activism of the court in favor of the plaintiff’s causes to the point where the court was arguably enacting changes in the law that would ordinarily come from the legislative branch of the court. In specifically holding that the regular use exclusion remained a permissible limitation of UIM coverage within the language of the MVFRL, the Pennsylvania Supreme Court wrote in Rush that, “with … no justification to allow this court to depart from decades of established law” that civil litigators had relied upon, the court held that it would maintain its continued course on this issue “unless and until the General Assembly or the insurance department acts in a way that would suggest we do otherwise.” 

Ultimately, contrary to its previous penchant to chart new avenues of recovery for injured plaintiffs regardless of established judicial precedent on the books for decades, the Pennsylvania Supreme Court implicitly acknowledged the continuing validity of the doctrine of stare decisis by stating that it was “bound by our prior decisions” to overrule the lower court decisions and hold that the regular use exclusion remained valid and enforceable.

Having previously shown a willingness to make startling changes in the status quo of civil litigation jurisprudence, but now showing signs of moderation, it will be interesting to see where the Pennsylvania Supreme Court goes from here in its handling of personal injury civil litigation matters.


Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law.  He can be reached at dancummins@cumminslaw.net.