Thursday, September 24, 2020

Summary Judgment Granted in Premises Case Where Plaintiff Produces No Evidence of a Defect

An ottoman is an ottoman is an ottoman.

In the case of Monfiletto v. Nordstrom, Inc., No. 5:19-CV-04005-JDW (E.D. Pa. July 31, 2020 Wolson, J.), the court granted summary judgment in a premises liability matter.  The Plaintiff, who used a cane to help her walk, was allegedly injured when she fell off an ottoman in a dressing room as she went to sit on it.  The Plaintiff alleged that the ottoman was slippery.

The court found that the Plaintiff’s description of the allegedly defective condition in this premises liability case was contradicted by objective evidence in the record in the form of a photograph of the ottoman.  The court stated that the photo showed that the "ottoman was just an ottoman" and showed no evidence of anything blameworthy.    The court found that this photographic evidence served to support the entry of summary judgment.

The court also rule that any allegedly defective condition at issue was open, obvious and admittedly known to the Plaintiff, who used the ottoman anyway.

As such, the court also found that the still valid doctrine of the assumption of risk also served to bar the Plaintiff’s cause of action as a matter of law.

The Court concluded its opinion in refreshing fashion by noting sympathy for the Plaintiff but also reaffirming that the Plaintiff had not offered any evidence that the Defendant store caused the Plaintiff's fall.

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

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.

Peculiar Risk and Retained Control Doctrines Applied in Support of Motion for Summary Judgment



In the case of Kinlaw v. Pennsylvania American Water Co., No. 17-CV-6738 (C.P. Lacka. Co. Sept. 15, 2020 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted summary judgment in favor of the Defendants in a slip and fall case in a matter in which the Plaintiff’s attorneys had previously withdrawn from their representation of the Plaintiff and in which the pro se Plaintiff did not secure other counsel or appear at the argument on the Motion for Summary Judgment. 

According to the Opinion, this matter arose out of a slip and fall that occurred at the Elmhurst Dam in Roaring Brook Township. 

At the time of the accident, the Pennsylvania American Water Company owned the dam and a Co-Defendant was a general contractor for a restoration project that was being performed on the dam. 

The general contractor had hired Century Security Systems as an independent contractor to provide security at the dam site. The Plaintiff alleged that she was working for Century Security Systems as a security guard at the dam when she slipped and fell as she exited her vehicle. 

Before the court was a Motion for Summary Judgment filed by the Pennsylvania American Water Company and the general contractor in which it was asserted that the Plaintiff’s work location and conditions were controlled exclusively by her employer, Century Security Services, and that, as such, liability could not be imposed upon the Pennsylvania American Water Company or the general contractor under either the “retained control” or the “peculiar risk” doctrines.

After reviewing these doctrines in detail and applying the law to the facts presented, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas found that the Plaintiff’s claims were barred as a matter of law. 

More specifically, the court found that there was no evidence that the Plaintiff’s fall was caused by a condition that was different from the customary risks associated with security work or that any such risk was allegedly foreseeable to the moving Defendants at the time the contract with the security company was executed. The court also noted the record lacked any evidence or even any suggestion that the moving Defendants possessed any form of superior knowledge or information would somehow place them in a better position to appreciate any risks presented by any alleged dangerous condition involved.   

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


If you have a trip and fall or a slip and fall matter that you would like to try to resolve before the end of the year, please consider Cummins Mediation Services.  Please contact me at 570-319-5899 or at dancummins@CumminsLaw.net.



Wednesday, September 23, 2020

Registration to do Business in Pennsylvania Amounts to Valid Consent to General Jurisdiction



The case of Weigold v. Ford Motor Company, No. 20-2141 (E.D. Pa. Sept. 9, 2020 Savage, J.) represents another decision in which a court held that a foreign company's registration to do business in Pennsylvania also represents a valid consent to general personal jurisdiction over that company in lawsuits filed in Pennsylvania. 

Based upon this rule of law, the court denied the Defendant’s Motion to Dismiss on jurisdictional grounds.  
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 office of the Reed Smith law firm for bringing this case to my attention.

Upcoming Zoom CLE By PADC To Consider if You Need Ethics CLE Credits

 

Here is a LINK to information on an upcoming CLE being put on by the Philadelphia Association of Defense Counsel on October 1, 2020 entitled "Professionalism in the Courtroom (And Beyond)."

I note that I am not presenting at this event and am not affiliated with the event.  I have only been ask to post on this event.

The program offers 1.5 Ethics CLE credits and costs $45.00 to attend.  Non-members are welcome to sign up. More details are provided at the Link above.

Preliminary Objections on Jurisdictional Issues Granted in Favor of NJ Defendant Regarding NJ Accident

The common plea court in Monroe County addressed issues of general jurisdiction over a non-resident Defendant in the case of Carpintero v. Aegean Express, Inc., No. 2044-CV-2020 (C.P. Monroe Co. July 16, 2020 Williamson, J.).

According to the Opinion, the Plaintiff was a passenger on a transport bus traveling from Pennsylvania to New York City. The bus broke down on the highway in New Jersey under dark conditions. It was alleged that the bus did not have any hazard lights or any other reflective devices to alert other drivers to its presence on the roadway.

Another tortfeasor Defendant, was traveling along the highway and, when a third, unidentified vehicle swerved to avoid the bus, the named tortfeasor Defendant lost control of her vehicle and hit the rear of the bus. 

The Plaintiff sued the bus company and that identified tortfeasor. The identified tortfeasor filed Preliminary Objections asserting that the Monroe County Court of Common Pleas could not exercise personal jurisdiction over her because she had no ties to Pennsylvania. According to the Opinion not only did the accident occur in New Jersey but that identified tortfeasor resided in New Jersey. 

Judge David  J. Williamson
Monroe County
Judge Williamson ruled that the basis for exercising jurisdiction over persons outside of the Commonwealth of Pennsylvania is found under Pennsylvania’s long-arm statute, 42 Pa. C.S.A.§5322. The court noted that Pennsylvania’s long-arm statute establishes that, in order for a Pennsylvania court to exercise jurisdiction over a foreign party, that foreign party must have some “minimal contacts” with Pennsylvania. 

Finding no such contacts with the Defendant at issue in this matter, the court granted the Preliminary Objections and noted that the fact that the accident involved a bus owned by a Pennsylvania company which bus contained Pennsylvania residents did not constitute sufficient contacts to assert personal jurisdiction over the Defendant at issue. 

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 18, 2020).




Tuesday, September 22, 2020

Sought Out By National Newsletter For Analysis on the Unsettled Validity of the Household Exclusion in Pennsylvania

 



Here is a LINK to the August 24, 2020 edition of the Auto Insurance Report, a national newsletter put out weekly by Risk Information, Inc., a company that provides strategic information to the property and casualty insurance inducstry.  

Leslie Hahn, the author of the article entitled "Pennsylvania Challenges Stack Up as Insurers Fight for Share," contacted me for input on the impact of the Gallagher v. GEICO decision on the validity of the Household Exclusion in Pennsylvania.

I referred the author of the article to Attorney Scott Cooper for his thoughts from the Plaintiff's perspective.

I send thanks to Attorney Hahn for contacting me in this regard and offer up this article for your review.




Still Time To Register to Secure 1.5 CLE Credits at a Zoom CLE This Friday


For more information on the upcoming CLE entitled "Mediation/Arbitration Tips" on September 25th see the below flyer.  

You can also register by sending an email to info2@monroebar.org.