Recklessness and Punitive Damages Claims Stricken in Alleged Cell Phone Distracted Driving Case

In the Cumberland County case of Manning v. Barber No. 17-7915 Civil (C.P. Cumb. Co. June 21, 2018 Masland, J., Beck, J., and Placey, J.) (Op. by Masland, J.), the court granted a Defendant’s Preliminary Objections and dismissed a Plaintiff’s punitive damages claim in a case in which the Plaintiff alleged that the Defendant driver was texting while driving.  

According to the Opinion, the Plaintiff’s vehicle was stopped at a red light with another vehicle stopped behind it. The Plaintiff alleged that the Defendant failed to stop for the traffic light and rear-ended the second vehicle, causing it to strike to the rear of the Plaintiff’s vehicle. The Plaintiff additionally alleged that, at the time of the accident, the Defendant was not looking at the roadway because she distracted while looking at and/or texting on her cell phone. 

In the Complaint, the Plaintiff alleged allegations of recklessness and sought an award of punitive damages. The Defendants filed Preliminary Objections to the Complaint asserting that the allegation of cell phone use alone, absent other indicia of recklessness, was insufficient to support and award of punitive damages.  

The court initially rejected the Plaintiff’s argument that the Defendants had improperly attacked or challenged the legality of the punitive damages sought in the Complaint by way of Preliminary Objections.  The court in this matter distinguished the Plaintiff’s reliance upon a case in which a Defendant had utilized a demurrer to attack a claim of punitive damages.

In this Manning case, the Defendants asserted Preliminary Objections on the basis of a failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter...” under Pa.R.C.P. 1028(a)(2).  

The court found that the Defendant’s Preliminary Objections were appropriate given that the Defendant was requesting the court to strike the allegations of recklessness and the demand for punitive damages as improper due to the fact that those claims were based upon allegations that only constituted negligence. 

The Manning court went on to address the merits of the Preliminary Objections presented.   After reviewing the general law pertaining to punitive damages, the court confirmed that there remains “a lack of Pennsylvania appellate case law in the context of distracted driving cases where the tortfeasor is distracted by the use of a cellular phone at the time of the accident.”  

The court did note that there was a number of trial court decisions from across Pennsylvania regarding claims for punitive damages in cell phone cases. Based upon these trial court decisions, the Manning court concluded that the mere use of a cell phone absent additional indicia of recklessness was not enough to sustain a claim for punitive damages.  

In reviewing the Plaintiff’s Complaint, the note noted that the additional allegations presented by the Plaintiff were simply boilerplate allegations that the Defendant was inattentive and going too fast, all of which allegations the court found only amounted to a classic claim of negligence, and not  recklessness.

The court in Manning additionally rejected the Plaintiff’s presentation of a policy-based argument that texting while driving should constitute per se recklessness. The court stated that, while this argument maybe considered by a future appellate court, in the absence of any such appellate guidance, the Manning  court declined to accept the Plaintiff’s argument in this regard.  

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

I send thanks to Attorney Andrew T. Rhoades of the Camphill, Pennsylvania office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this decision to my attention.  

Summary Judgment Granted Where Plaintiff Tripped in Supermarket Over Open and Obvious Pallet Stacked with Cases of Water

(Not a picture from this case)

In the recent case of Walker v. Save-A-Lot, No. 18-CV-95 (E.D. Pa. June 12, 2018 DuBois, J.), summary judgment was granted in favor the defense in a case in which a Plaintiff fell over a pallet while stepping backwards.

According to the Opinion, the pallet was located in the middle of the aisle in the frozen foods section.  The Plaintiff walked towards the pallet and stopped her cart next to the pallet and went went to the door of the frozen foods section to grab a pizza.  As she then backed up, she tripped over the pallet.  The Plaintiff alleged that she never saw the pallet because she was focused on getting her pizza from the freezer unit.

The court found that, based upon the record before it, the pallet over which the Plaintiff tripped, was an open and obvious condition.  It was noted that the Plaintiff had walked past another pallet in the same aisle and that both pallets were stacked high with cases of water.  The court pointed to the well-settled law that landowners are not liable for injuries caused by known of obvious conditions.

Quoting the well-known case of Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983), the court in Walker stated that “[a] danger is deemed to be ‘obvious’ when ‘both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.’”

While the question of whether a danger is known and obvious is typically a jury question, the court noted that where, as here, no reasonable minds on a jury could disagree on a conclusion that the danger was known and obvious, the court could decide the issue on a summary judgment motion.

The court additionally noted that it is "hornbook law in Pennsylvania that a person must look where he is walking."  

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

I send thanks for Attorney James M. Beck of the Reed Smith Law Firm in Philadelphia, Pennsylvania for bringing this case to my attention. 

Pennsylvania Federal District Court Remands Stacking Issue to State Court For a Decision

In the case of Allstate Fire and Cas. Ins. Co. v. Archer, No. 1:17-CV-331 (W.D. Pa. June 4, 2018 Hornak, J.), the Western District Federal Court declined to address a stacking issue raised in a declaratory judgment action after finding that the issue would more properly be decided by the state court given the contractual issues presented.  

As such, in this matter, the court remanded the case to the state court system for a decision.  

In so ruling, the court weighed several factors with respect to the proper exercise of federal jurisdiction primarily as set forth in the case of State Auto Ins. Co. v. Summy, 234 F.3d 131, 133 (3d. Cir. 2000) [citations omitted] and Reifer v. Westport, 751 F.3d 129, 145-46 (3d. Cir. 2014).  

As such, this Western District Federal Court decision raises the question as to whether the federal district courts of Pennsylvania will accept stacking declaratory judgment actions for a decision, or will continue to remand such issues back to the state court for resolution.  

Please click this LINK to view this decision online.

I send thanks to Attorney Scott Cooper, Esquire of the Harrisburg, PA office of Schmidt Kramer for bring this case to my attention.

Notable But Non-Precedential Superior Court Post-Koken Decision Noted (From Back in 2016)

I recently came across a notable, non-precedential, post-Koken decision from back in 2016 entitled Zellat v. McCulloch, No. 1610 W.D. 2014, 2016 W.L. 312486 (Pa. Super. Jan. 26, 2016) (Bowes, Olson, and Stabile, J.J.) (Mem. Op. by Bowes, J.) (Non-precedential).   

Unfortunately, this post-Koken decision on notable issues was not published by the Pennsylvania Superior Court and was, instead, listed as a non-precedential decision.  

The hope remains that the Pennsylvania Superior Court and the Pennsylvania Supreme Court will publish any and all decisions related to post-Koken issues as any guidance on these still novel and developing issues would be of great help to both the bench and the bar in litigating these types of cases.

The case of Zellat involved a post-Koken lawsuit in which the Plaintiff sued both the third party tortfeasor on a negligence claim and her own underinsured motorist carrier on a UIM claim. 

At the trial level, the Allegheny Court of Common Pleas allowed the case to proceed in front of a jury without the UIM insurance company Defendant being mentioned.  Nor was the type of insurance involved mentioned.  

At trial, the jury found that the tortfeasor’s negligence was not the factual cause of any harm. The Plaintiff appealed.  

Among the many arguments listed on appeal by the Plaintiff was that she was denied due process because the UIM carrier was not mentioned or identified at trial.   In this regard, the Plaintiff relied upon the prior decision of Stepanovich v. State Farm, 78 A.3d 1147 (Pa. Super. 2013).  

Similar to its previous decision in the Stepanovich case, the Superior Court held in Zellat that it was not per se reversible error not to identify the insurance company when the insurance company Defendant is in a joint trial with the third party tortfeasor.  

The court in Zellat found this Stepanovich decision to be on point on the issue whether a Plaintiff is able to establish prejudice when the insurance company is not identified or mentioned.   The court in Zellat stated that, similar to as to the Stepanovich decision, prejudice was not established by the failure to identify the UIM carrier at trial.  

As such, the Zellat court found that the trial court did not abuse its discretion in not identifying the UIM carrier during the joint trial with the tortfeasor.  

In this appeal, the Plaintiff also presented a secondary contention that she was unfairly “tagged-teamed” by the participation of two (2) defense lawyers, one of whom represented the tortfeasor and the other who defended the case for the UIM carrier.   

This argument was rejected by the Superior Court in Zellat given that the Plaintiff did not request a new trial as part of her appeal process with respect to the participation of both defense counsel at trial. As such, this argument was rejected.  

Anyone wishing to read this case, may click this LINK.

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Can A Bad Faith Claim Be Pled Where There is a Finding of No Coverage Due Under Policy?

In the case of Frantz v. Nationwide Ins. Co., No. 3:18-cv-0509 (M.D. Pa. May 15, 2018 Caputo, J.), Judge A. Richard Caputo of the Federal Middle District Court of Pennsylvania appeared to part ways somewhat from the notion that a bad faith claim cannot exist in a matter where there is otherwise no insurance coverage due for a variety of reasons.  

In this case, the court dismissed the insured’s breach of contract claim after finding that no insurance coverage was due under the circumstances presented.  Nevertheless, the court still gave the Plaintiff leave to file an Amended Complaint asserting common law and statutory bad faith claims. 

In his Opinion, Judge Caputo cited the standard of review requiring that a bad faith Plaintiff has to show that there was no reasonable basis to deny coverage and that the insured knew or recklessly disregarded this fact.  

However, the court then set forth another standard, indicating that “[a] plaintiff may also make a claim for bad faith stemming from an insurer’s investigative practices, such as a ‘lack of a good faith investigation into facts, and failure to communicate with the claimant.’”  

It appears that the amendment to the Complaint was allowed based upon this second standard, which was treated here as an independent basis for a §8371 bad faith claim even if no coverage is actually due under the policy.  

Judge Caputo did otherwise reaffirm that §8371 does not cover alleged bad faith in soliciting a policy and, therefore, did dismiss that claim in this matter.  

I do not have a copy of this decision handy but the docket number is provided above.

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman Krekstein & Harris and the writer of the Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog for bringing this case to my attention.  

Summary Judgment Reversed in Alleged Misuse of a Safety Harness in a Products Liability Case

In its recent decision in the case of Zimmerman v. Andrew, No. 662 WDA 2017 (Pa. Super. June 1, 2018 Bowes, J., Panella, J. and Stabile, J.) (Op. by Bowes, J.), the Pennsylvania Superior Court reversed a trial court’s entry of summary judgment in favor of a Defendant in a products liability case.  

According to the Opinion, the Plaintiff was injured when a safety harness he was utilizing while cutting down a tree allegedly failed when the Plaintiff was 35 feet up in a tree and the Plaintiff fell to the ground and sustained personal injuries.  

The record before the court indicated that the Plaintiff had gone to the home of his friend to cut down a dead tree at the request of the friend.   The friend had obtained the harness from another friend who had purchased the harness but never used it.   The harness came with paper instructions.  

The Plaintiff skimmed the instructions but did not thoroughly read the instructions.   The Plaintiff also admittedly saw a warning label on the harness itself but did not read it completely.  

The Plaintiff, who had limited personal experience using a harness in construction work and from seeing them used on television programs featuring people cutting trees, thought the use of the harness was self-explanatory.  

However, the Plaintiff and his friend put the harness on the Plaintiff backwards.  

Thereafter, when the Plaintiff utilized the harness to bear his weight high up in the tree, the harness failed and the Plaintiff fell to the ground.  

The Plaintiff sued the manufacturer of the harness under claims of strict product liability, negligence, and breach of warranty.  

The Plaintiff more specifically alleged that the harness was sold with insufficient strength and durability such that it was unreasonably dangerous.  The Plaintiff also asserted that the harness was sold with inadequate warnings regarding the proper use of the device.  

In its defense, the Defendant asserted the defenses of misuse of the product and comparative negligence.  

More specifically, the Defendant asserted that the harness was intended for use on construction projects by workers trained on how to use it and that the Plaintiff’s use of the device in a tree without training was a misuse, not an intended use, and further was not foreseeable.  The defense also asserted that the Plaintiff was wearing the harness backwards.

The trial court had entered summary judgment after finding that “[t]here is absolutely nothing that we would make a manufacturer think that” someone would use the product as the Plaintiff did and that “it would be a waste of time to take this to a jury” because the jury would have to find in favor of the Defendant if they followed the court’s instructions as to the law.  

On appeal, the Pennsylvania Superior Court reviewed the current status of Pennsylvania strict liability law under §402A of the Restatement (Second) of Torts as well as under general negligence principles given the Plaintiff’s separate claims in this regard.   The Superior Court confirmed that, under the current status of Pennsylvania law, the Plaintiff’s use of the harness in an unforeseeable or highly reckless manner could serve to defeat the Plaintiff’s §402A claim.  

Citing to Reott v. Asia Trend, Inc., 55 A.3d 1088, 1097 (Pa. 2012), the Superior Court noted that the Pennsylvania Supreme Court had recognized that product misuse and highly-reckless conduct are affirmative defenses to a strict liability claim.   According to Reott, to establish a misuse of the product, the Defendant must show that the use was “unforeseeable or outrageous.”  

The Reott court had noted that highly reckless conduct is akin to evidence of misuse and requires the Defendant to prove that the Plaintiff would have been injured despite the curing of the alleged product defect, or that the misuse of the product by the plaintiff was so extraordinary and unforeseeable as to constitute a superseding cause.  

The court in this Zimmerman case went on to note, citing other precedent, that it is “well-settled that a plaintiff’s misuse of a product cannot be grounds for granting summary judgment in favor of the manufacturer under a designed defect theory unless it is established that the misuse solely caused the accident while the design defect did not contribute to it.”   See Op. 8. [emphasis in Zimmerman].

In this Zimmerman decision, the court pointed to various issues of fact, along with issues raised by the parties' experts, to  conclude that the Plaintiff tendered sufficient evidence that, if accepted by the jury, would establish that the harness was defective, that the Defendant was negligent in the product’s design and instructions, and that these deficiencies were a proximate cause of the Plaintiff’s injuries.  

As such, the Superior Court found that it was error for the trial court to rule on the record before it that the Plaintiff’s misuse of the harness was the sole cause of the accident. 

The Superior Court also ruled that there were material issues of fact relative to the negligence issues such that the Plaintiff’s negligence claims should also be allowed to proceed to the jury.  

In light of the its other conclusions, the Superior Court additionally allowed the Plaintiff’s breach of warranty claim to also proceed to the jury.  

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

I send thanks to Attorney Kenneth T. Newman of the Pittsburgh office of Thomas Thomas & Hafer for bringing this case to my attention.