Friday, February 5, 2016

Judge Gibbons Grants Summary Judgment Based on Waiver Form and Assumption of Risk in Football Injury Case

With the Super Bowl on the horizon comes the case of first impression of Feleccia v. Lackawanna Coll., No. 12-CV-1960, 2016 WL 409711 (C.P. Lacka. Co. Feb. 2, 2016 Gibbons, J.), in which Judge James A. Gibbons of the Lackawanna County Court of Common Pleas was faced with the issue whether two junior college students who were injured at a preseason football practice were barred from recovering against the college because both signed waivers of liability prior to their injuries.

In a Motion for Summary Judgment, the defendants also raised the issue of whether, as a matter of law, the Plaintiff’s claims were barred by their assumption of the risk of being injured.

Judge James A. Gibbons
Lackawanna County
In his Opinion, Judge Gibbons noted that, while Pennsylvania courts have upheld exculpatory releases for skiing, whitewater rafting, weight lifting, skating, and motorcycling, among other types of activities, no case was found involving collegiate football.

Judge Gibbons nevertheless ruled that neither the applicable law nor the facts of this case required the court to distinguish between the inherently dangerous nature of football and these other types of sporting activities noted.

As such, the court ruled that waivers of liability executed by the students precluded their recovery.

Alternatively, the court also found that the students assumed the risks of their injuries.  As such, similar to the Denzel case recently highlighted here on Tort Talk, a trial court does have the discretion to enter summary judgment on an application of the assumption of risk doctrine where no reasonable minds on a jury could disagree on a conclusion that a plaintiff assumed the risk of incurring his or her injuries. 

Accordingly, summary judgment was entered in the Defendant's favor in this matter.

Anyone wishing to review this Feleccia decision by Judge Gibbons may click this LINK.


Pennsylvania Superior Court Revisits Forum Non Conveniens Doctrine

In its recent decision in the case of Fessler v. Watchtower Bible & Tract Society, Inc., 2015 Pa. Super. 274 (Pa. Super. Dec. 30, 2015 Jenkins, Mundy, Fitzgerald, J.J.)(Op. by Jenkins, J.), the Pennsylvania Superior Court addressed current status of Pennsylvania law on the doctrine of forum non conveniens relative to a matter involving a consolidation of appeals in two separate cases.

The Superior Court noted that conveniens, not the pursuit of verdicts in Plaintiff-friendly venues, is the reason why Plaintiffs have the initial choice of venue.   The court stated that, under Pennsylvania law, the Doctrine of Forum Non Conveniens is a necessary counter balance to the Plaintiff’s first choice in this regard. 

The Superior Court reiterated that, under the Cheeseman and Bratic Pennsylvania Supreme Court decisions a determination of a forum non conveniens motion presented to the court requires a consideration of the totality of the circumstances.  

Generally, the court agreed that the possibility of oppressiveness with regards to the forum selected by the Plaintiff grows with each passing mile that a witness must travel to reach the courthouse.  The Superior Court noted that a need to travel 100 miles nears the level of oppressiveness addressed in the law.  

With respect to one of the cases at issue in this matter, the court noted the York County transfer, while adequately supported in the record, was filed too late as it was filed two weeks before trial.  The court also noted that the request was that the case be transferred to York County which had the largest backlog of civil cases in the Commonwealth which would result in a substantial delay of a trial in a matter that was set to be tried in two weeks at the time the motion was filed.  The court also noted that the motion was filed after the allegedly inconvenience witnesses had already come to the Philadelphia area for their depositions without objection.   With trial already scheduled, the Superior Court thought that it was an abuse of discretion to grant this last minute motion. 

As such, the trial court's transfer of the matter out of the Philadelphia County Court of Common Pleas was reversed in both cases as the Superior Court found that a trial of the matter in Philadelphia County would be, at most, inconvenient, but not oppressive.

Anyone wishing to read this Fessler decision may click this LINK

Summary Judgment Granted In Slip and Fall Case Based Upon Assumption of Risk Defense

In the recent decision of Denzel v. Fed. Cleaning Contractors, Inc., PICS Case No. 16-0056 (C.P. Lehigh Co. Oct. 22, 2015 Varricchio, J.), the Lehigh County Court of Common Pleas ruled that, while Defendant-mall owners and managers owed the Plaintiff a duty to exercise reasonable care to protect the Plaintiff from conditions that were known or discoverable to the Plaintiff, the Plaintiff was found to have assumed the risk of her injury by knowingly and voluntarily walking over the patches of snow and ice.  As such, the court found that Defendants’ duty to the Plaintiff was discharged and that the Plaintiff could not establish negligence.   Accordingly, the Defendants’ Motion for Summary Judgment was granted.  

Tort Talkers may recall that the Pennsylvania Superior Court previously issued a decision on October 9, 2015 in the same case confirming that the trial court may enter summary judgment in favor of a Defendant in a slip and fall case based upon the assumption of risk defense.   To view that Tort Talk entry, click HERE.

 To review the more recent trial court Opinion from October 22, 2015 in the Denzel case, please call the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-7427 and provide the above-referenced PICS Case No. and pay a small fee.  

To view other Assumption of Risk decisions, please go to Tort Talk at and scroll all the way down the right hand blue column until you get to the "Labels" section and click on the Label for 'Assumption of Risk.'

Wednesday, February 3, 2016

Judge Nealon of Lackawanna County Grants Request for Discontinuance in Favor of One Defendant in a Case Not Entirely Resolved

In his recent January 19, 2016 Opinion in the case of Lapinski v. Schiowitz, No. 2009-CV-4287 (C.P. Lacka. Co. Jan. 19, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the issue of a Defendant seeking to be dismissed from a lawsuit by way of a Discontinuance when the entire lawsuit has not yet concluded.  

In Lapinski, the Defendant-hospitals in a malpractice action filed Motions for Discontinuance seeking their dismissal as named defendants pursuant to Pa. R.C.P. 229(b)(1).  

Judge Terrence R. Nealon
Lackawanna County
Judge Nealon confirmed that no cross-claims were asserted against the Defendant-hospitals by any Co-Defendant under Pa. R.C.P. 1031.1.   Moreover, no expert report had been produced in the case by any party alleging any liability on the part of the Defendant-hospitals who were seeking dismissal by way of a Discontinuance. 

The court noted that the only claim against the Defendant-hospitals was the Plaintiffs’ original allegation that the Defendant-surgeons were ostensible agents of the Defendant-hospitals such that the hospitals were vicariously liable for the surgeons’ negligence.   When the Plaintiffs chose to abandon that only claim asserted against the Defendant-hospitals, the hospitals sought the dismissal.   The court also noted that the Plaintiff had stipulated in writing their agreement to the dismissal of the Defendant-hospitals. 

The Co-Defendant-surgeons opposed the requested Discontinuances.  As such, the Defendant-hospitals filed the motion at issue.

Judge Nealon ruled that the Defendant-surgeons had no basis to oppose the Discontinuance of this action against the Defendant-hospitals since the surgeons did not assert any cross-claims against the Defendant-hospitals.  The court also ruled that the Defendant-surgeons could not compel the Plaintiff to litigate an ostensible agency claim that the Plaintiffs had elected to withdraw.  

The court also ruled that another judge’s denial of the Defendant-hospitals’ previous Motion for Summary Judgment did not serve to preclude the granting of the Motion to Discontinue at issue.

Accordingly, the court granted the Defendant-hospitals’ Motion for Leave of Court to Discontinue under Rule 229(b)(1) and the Defendant-hospitals were removed as parties from the case. 

Anyone wishing to read this Opinion by Judge Nealon in the Lapinski case may click this LINK.

Commentary:  It would appear that the ruling and reasoning of Judge Nealon in this medical malpractice case could be applied in other types of civil litigation matters where a party Defendant requests a Discontinuance in a multi-Defendant matter where the Plaintiff agrees to forego any claims against that Defendant and where there are no cross-claims asserted by any other Defendant.

Source of image ("Discontinued")

Tuesday, February 2, 2016

Supreme Court to Decide Post-Tincher Issue of Whether "Unreasonably Dangerous" Standard Applies in Failure-To-Warn Cases

In an Order hnaded down by the Pennsylvania Supreme Court dated February 1, 2016 in the case of Vinciguerra v. Bayer Cropscience, Inc., 447 EAL 2015 (Pa. Feb. 1, 2016), the Court agreed to address the following Post-Tincher issue in products liability cases:

"Whether, under the Court’s recent decision in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), a defendant in a strict-liability claim based on a failure-to-warn theory has the right to have a jury determine whether its product was “unreasonably dangerous[?]”

A copy of the Supreme Court's Order can be viewed HERE.

I send thanks to Attorney James Beck of the Philadelphia office of Reed Smith for bringing this Order to my attention.  Check out Attorney Beck's excellent Drug and Device Law Blog HERE.

Monday, February 1, 2016

Ability of Parent To Recover Damages In Own Right Where Child Injured In MVA

A common question in automobile accident personal injury matters is to what extent a parent can recover damages in a case where claims are pursued on behalf of a minor Plaintiff. 

This issue was addressed in a recent decision by Lycoming County Court of Common Pleas Judge Richard A. Gray in the case of Ritter v. Makos, No. 14-02653 (C.P. Lycoming Co. Nov. 5, 2015 Gray, J.).

In Ritter, the Plaintiff-mother was driving with the Plaintiff-minor, i.e., her daughter, when they were involved in a motor vehicle collision.  A Complaint was filed for personal injuries to the minor Plaintiff.  The Plaintiff-mother did not sustain any permanent personal injuries.

A separate Complaint was filed on behalf of the Plaintiff-mother for her alleged damages arising out of the same accident.  Included in the Plaintiff-mother's Complaint was a claim for a recovery by the Plaintiff-mother of health care costs expended, or to be expended, out-of-pocket by the mother for treatment for the child up to the child reached the age of 18

A claim for the pecuniary value of any services the child would have provided to her mother during child's minority if the child was not injured was also asserted on behalf of the Plaintiff-mother.

The defense filed Preliminary Objections asserting that the Plaintiff-mother's claims should be dismissed for failure to state a claim upon which relief may be granted. 

The court denied the Preliminary Objections and noted that the defense had only cited to 75 Pa.C.S.A. Section 1722 of Pennsylvania's Motor Vehicle Financial Responsibility Law ("MVFRL"), but no caselaw.

Judge Richard A. Gray
Lycoming County
Judge Gray ruled that the MVFRL did not generally preclude a claim by a parent of a minor child injured in a motor vehicle accident.

The court noted that, under Pennsylvania law, a personal injury to a minor child gives rise to two separate and distinct causes of action.  First, there is a recognized claim for pain and suffering to the child and for losses after the child reaches the age of majority.  Also recognized under Pennsylvania law is a claim by a parent(s) of the injured child for medical expenses and the loss of the minor's services during the minority period of the child's life.

The court noted that, while Section 1722 of the MVFRL precludes double recoveries in auto accident personal injury cases, the claims of the parent and child asserted were separate and distinctly recognized recoverable claims such that no double recovery was involved.

As such, the Preliminary Objections were denied in this regard.

The Preliminary Objections were sustained to the extent the parent was attempting to recover damages for health care expenses and related costs recoverable by the guardian of the minor on the separate claims pursued on behalf of the minor Plaintiff.

Anyone wishing to review this case may click this LINK.

Source:  "Digest of Recent Opinions."  Pennsylvania Law Weekly (Jan. 12, 2016).

Friday, January 29, 2016

Impact of Waivers Executed By Decedent in Wrongful Death Claims Revisited by Superior Court

In its recent decision in the case of Valentino v. Philadelphia Triathlon, LLC, No. 3049 EDA 2013 (Pa. Super. Dec. 30, 2015 Ford Elliot, P.J.E., Olson, and Wecht, JJ.) (Opinion by Ford Elliot, P.J.E.), the Pennsylvania Superior Court addressed issues surrounding waiver or release forms as applied to wrongful death claims.  

This matter arose out an incident during which the Plaintiff’s decedent participated in a triathlon in Philadelphia.  The decedent signed a waiver form when he signed up to participate in the event.

During the event, the decedent never completed the swimming portion of the competition and his body was recovered from the Schuylkill River the day after the incident.  

Wrongful death and survival claims were pursued by the decedent’s widow.   The case was eventually concluded at the trial court level by way of the entry of a summary judgment based upon the waiver executed by the decedent. The Plaintiff’s estate appealed.  

On appeal, the Superior Court reviewed Pennsylvania law with respect to punitive damages claims and found that the trial court properly dismissed such claims at the Preliminary Objections stage given that the Plaintiff had alleged facts supporting claims for ordinary negligence.   Given that there were no facts to support a claim of outrageous behavior or conscious disregard for the risks confronted by triathlon participants, the appellate court ruled that the trial court properly dismissed the Plaintiff’s allegations of outrageous conduct and, therefore, had also properly struck the claim for punitive damages.  

On the waiver/release issue, upon which the trial court had granted summary judgment, it was noted that only the Plaintiff’s decedent had signed a release or waiver form when entering the competition.  

On appeal, the Plaintiffs initially argued, in part, that a Plaintiff cannot contractually waive liability for reckless or intentional conduct and that, as a result, any waiver executed in this case was invalid.  

The Pennsylvania Superior Court noted that, since it had already determined in this matter that the Plaintiff did not state valid claims involving reckless or intentional conduct, the Plaintiff’s contention in this regard could not serve to disturb the trial court’s ruling.  

The Plaintiff also asserted that, pursuant to the prior appellate court decision in the case of Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2013), appeal denied, 86 A.3d 233 (Pa. Super. 2014), cert. denied, 134 S.Ct. 2890 (2014), a decedent’s waiver is ineffective as to third-party wrongful death claims. 

The appellate court found that the Plaintiff’s argument regarding the Pisano case to be dispositive.  The court determined that the Plaintiff’s widow could maintain a wrongful death cause of action and is not bound by the decedent’s release given that the Plaintiff pursuing the case was not a signatory of that waiver form.  

Similar to the finding in the Pisano case, the court ruled that a waiver form was not binding on the representative of the decedent’s estate as wrongful death claims are not considered to be derivative of the decedent’s rights under Pennsylvania law.   Rather, the right of action belongs to the statutory wrongful death claim claimants, not the decedent.

In the court in this Valentino case went on to note, as explained in the Pisano decision, that, in Pennsylvania, survival and wrongful death actions are separate and distinct and that wrongful death lawsuits are not merely derivative of the rights of the decedent.  

Accordingly, following the Pisano case, the Valentino court concluded that the decedent’s release agreement/waiver form signed when entering the competition did not bind the Plaintiff’s widow/representative of his estate and did not preclude her from bringing a wrongful death action.  

Rather, as confirmed by Pisano, the wrongful death action is an independent cause of action, created by statute, and is not to be considered to be derivative of the decedent’s rights at the time of death.   The release agreement/waiver form was noted to only be between the decedent and the competition and was found to have no effect on the decedent’s non-signatory heirs, including the Plaintiff’s decedent’s widow, who brought this lawsuit.  

As such, the underlying claim was allowed to proceed.
Anyone wishes to review the majority Opinion of Superior Court Judges Ford Elliot and Wecht, may click this LINK.

The dissenting Opinion of Judge Olson can be viewed HERE

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